LIBRARY 

OF  THE 

UNIVERSITY  OF  CALIFORNIA. 

GIFT   OF" 

Mrs.  SARAH  P.  WALSWORTH. 

Received  October,  1894. 
Accessions  No.*5*~J  f>  //  ...      Class  No. 


OUTLINES 


OF  THE 


CONSTITUTIONAL  JURISPRUDENCE 

OF  THE 

UNITED  STATES; 

DESIGNED  AS  A  TEXT  BOOK  FOR  LECTURES, 

\v«*. 

AS  A  CLASS  fJOOK  FOR 
ACADEMIES  AND  COMMON  SCHOOLS, 

AND  AS  A 

MANUAL  FOR  POPULAR  USE. 


BY  WILLIAM  ALEXANDER  DUER,  L.L.D. 

PRESIDENT  OF  COLUMBIA  COLLEGE  IN  THE  CITY 
OF  NEW-YORK. 


Est  omn  6u«  necessarium,  nosse  rempublicam. — Cic. 


NEW- YORK : 
PUBLISHED  BY  COLLINS  AND  HANNAY. 

W.  E.  DEAJV,  PRINTER. 

1833. 


Entered  according  to  the  Act  of  Congress,  in  the  year  One  Thousand  Eight 
Hundred  and  Thirty-three,  by  WILLIAM  ALEXANDER  DUER,  in  the 
Clerk's  Office  of  the  Southern  District  of  New-  York. 


TO 

JAMES  MADISON. 


To  you,  Sir,  as  the  surviving  member  of 
the  august  assembly  that  framed  the  Con- 
stitution, and  of  that  illustrious  triumvirate 
who,  in  vindicating  it  from  the  objections  of 
its  first  assailants,  succeeded  in  recommend- 
ing it  to  the  adoption  of  their  country;  to 
you,  who,  in  discharging  the  highest  duties  of 
its  administration,  proved  the  stability  and 
excellence  of  the  Constitution,  in  war  as  well 
as  in  peace,  and  determined  the  experiment 
in  favour  of  republican  institutions  and  the 
right  of  self-government ;  to  you,  who  in  your 
retirement,  raised  a  warning  voice  against 
those  heresies  in  the  construction  of  that 
Constitution  which  for  a  moment  threatened 
to  impair  it ;  to  you,  Sir,  as  alone  amongst  the 
earliest  and  the  latest  of  its  defenders, — this 
brief  exposition  of  the  organization  and  prin- 
ciples of  the  National  Government,  intended 
especially  for  the  instruction  of  our  American 
youth,  is  most  respectfully,  and,  in  reference 
to  your  public  services,  most  properly  inscrib- 
ed. 

Columbia  College,  JV.  F.  I 
August  1st,  1833.       f 


PREFACE. 


THE  following  sheets  are  submitted  to  the 
Public  in  consequence  of  a  resolution  of"  The 
American  Lyceum,"  requesting  the  Author 
"  to  prepare  and  publish  ;  Outlines  of  the  Con- 
stitutionalJurisprudence  of  the  United  States,' 
in  a  form  suitable  for  a  text  book  for  Lectures, 
and  a  class  book  to  be  used  in  Academies 
and  Common  Schools." 

This  resolution  avowedly  originated  from 
a  conviction,  on  the  part  of  the  respectable 
body  who  adopted  it,  of  the  advantage  and 
propriety  of  including  the  study  of  our  politi- 
cal institutions  in  the  system  of  general  edu- 
cation ;  and  the  proposal  seems  to  have  been 
prompted  by  the  opinion  or  experience  of  the 
individuals  by  whom  it  was  brought  forward, 
and  who  are  practically  engaged  in  the  instruc- 
tion of  youth,  that  none  of  the  existing  Trea- 
tises upon  Constitutional  Law,  were  of  a  suffi- 
ciently popular  character  for  the  design  con- 
templated ;  whilst  the  selection  of  the  Author 


VI  PREFACE. 

to  compile  such  a  work,  is  doubtless  to  be 
ascribed  to  his  official  connection  with  the 
"Lyceum,"  and  to  the  circumstance  of  his  hav- 
ing, to  the  knowledge  of  several  of  its  mem- 
bers, been  for  some  time  previously  engaged 
in  lecturing  upon  ConstitutionalJurisprudence 
in  the  College  over  which  he  has  the  honour 
to  preside. 

It  was  indeed  at  his  suggestion  that  this 
branch  of  study  had  been  added  to  the  sub- 
graduate  course  of  instruction  in  that  Institu- 
tion, and  the  duty  of  conducting  it  confided 
to  his  charge  ;  and  it  was  with  peculiar  satis- 
faction, though  not  without  a  due  sense  of  its 
responsibility,  that  he  had  engaged  in  a  task 
which,  grateful  as  it  was  to  him  from  its  con- 
geniality with  his  former  studies  and  pursuits, 
he  nevertheless  apprehended  would  prove  ar- 
duous in  its  execution,  both  from  the  nature 
of  the  subject,  and  his  own  views  of  its  impor- 
tance. 

A  knowledge  of  the  history,  organization, 
and  principles  of  the  political  institutions  un- 
der which  he  lives,  is  essential  to  the  scholar, 
and  must  necessarily  be  advantageous  to  eve- 
ry man,  wheresoever  he  may  have  been  born, 
and  under  whatsoever  form  of  government  he 


PREFACE. 


may  dwell.  But  it  is  obviously  of  more  im- 
mediate necessity  and  benefit  in  free  States, 
where  every  citizen  may  exercise  a  voice, 
more  or  less  potential,  in  the  administration 
of  public  affairs  ;  and  it  may  even  be  deemed 
indispensable  in  our  own  favoured  land,  where 
the  political  rights  of  all  are  equal,  and  where 
the  obscurest  individual  is  eligible  to  the  high- 
est and  most  responsible  stations  in  the  go- 
vernment. It  may  therefore  well  be  regard- 
ed as  a  defect  in  the  prevailing  systems  of 
education,  that  this  study  should  so  generally 
have  been  either  altogether  omitted,  or  defer- 
red to  that  period  of  life  when  our  youth  are 
called  on  to  participate  in  the  active  duties 
of  society  ;  or  that  it  should  be  considered 
appropriate  to  those  only  who  are  designed 
for  a  particular  profession,  or  aspire  to  public 
employments. 

Necessary,  however,  as  is  a  profound  know- 
ledge of  the  Constitution,  to  the  lawyer  and 
the  statesman,  a  general  acquaintance  with 
its  principles  and  details  is  requisite  to  all 
who  entertain  just  views  of  liberal  education, 
or  correctly  estimate  their  privileges  as  citi- 
zens of  a  free  Republic  ;  and  the  increasing 
interest  which  has  of  late  been  manifested  by 
the  more  intelligent  portion  of  the  community, 


VHI  PREFACE. 

in  discussions  relative  to  the  origin,  structure, 
and  principles  of  our  political  system,  certain- 
ly evince  that  this  class  of  citizens  appre- 
ciate their  political  rights,  and  that  so  far, 
they  are  understood.  But  the  information 
requisite  cannot  be  implanted  too  soon  after 
the  mind  has  been  prepared  to  receive  it ; 
and  it  should  remain  no  longer  a  reproach  to 
any  of  our  higher  seminaries  of  learning,  that 
its  graduates  are  sent  forth  into  the  world 
more  familiar  with  the  Constitution  of  the 
Roman  Republic,  and  the  principles  of  the 
Grecian  confederacies,  than  with  the  funda- 
mental institutions  of  their  own  country. 

Recent  events,  moreover,  demonstrate  that 
a  correct  knowledge  of  the  powers  and  duties 
of  the  National  and  State  Governments  can- 
not be  too  widely  diffused  nor  too  early  in- 
culcated ;  whilst,  from  the  nature  and  value  of 
that  knowledge,  the  public  interest  and  safe- 
ty, if  not  the  stability  of  our  political  institu- 
tions, no  less  than  the  happiness  and  security 
of  individuals,  require  that  it  should  be  ex- 
tended, in  common  with  all  the  essential 
branches  of  general  education,  to  every  por- 
tion, and,  if  possible,  to  every  member,  of  the 
community. 


PREFACR.  IX 

With  this  special  end  in  view,  the  applica- 
tion of  "  The  American  Lyceum"  was  made 
to  the  Author,  and  was  acceded  to  by  him 
with  similar  feelings  of  mingled  satisfaction 
and  diffidence  to  those  with  which  he  had 
assumed  the  duty  assigned  to  him  in  rela- 
tion to  the  subject  in  Columbia  College.  In 
order  in  any  measure  to  effect  the  object  in 
contemplation,  he  conceived  it  proper  to  re- 
cast the  materials  he  had  already  used  in  a 
different  form,  and  to  compose  from  them  a 
new  work  divested,  as  far  as  practicable,  of 
the  professional  character  and  aspect  com- 
mon to  all  previous  publications  on  Consti- 
tutional Law.  He  has  accordingly  revised 
and  remodelled  his  manuscript  notes ;  and 
in  thus  attempting  to  furnish  a  new  outline  of 
this  branch  of  Jurisprudence,  he  has  avoided, 
as  far  as  possible,  the  use  of  all  purely  tech- 
nical terms,  and  has  never  introduced  them 
unaccompanied  by  the  explanation  requisite 
for  those  to  whom  they  are  not  familiar; 
whilst  in  all  other  respects  he  has  endeavour- 
ed to  render  his  production  useful  as  a  popu- 
lar manual,  rather  than  that  it  should  be  dis- 
tinguished as  a  scientific  treatise. 

In  a  work  of  this  description,  of  which  the 
essential  value  must  depend  on  the  fidelity 


PREFACE. 


with  which  the  provisions  of  the  Constitution, 
the  legislative  enactments  for  giving  it  ef- 
fect, and  the  judicial  construction  which  both 
have  received,  are  stated  and  explained,  it 
must  be  evident  that,  except  as  to  method 
and  arrangement,  there  can  be  little  scope 
for  originality.  To  that  merit,  therefore,  the 
Author  makes  no  pretensions.  Upon  such 
points  of  Constitutional  Law  as  have  been 
definitively  settled,  he  has  implicitly  followed 
those  guides  whose  decisions  are  obligatory 
and  conclusive  :  upon  questions  which  have 
arisen  in  public  discussion,  but  have  neither 
been  presented  for  judicial  determination,  nor 
received  an  approved  practical  interpretation 
from  the  other  branches  of  the  Government, 
he  has  had  recourse  to  those  elementary  wri- 
ters whose  opinions  are  acknowledged  to 
possess  the  greatest  weight,  either  from  their 
intrinsic  value,  or  their  conformity  with  the 
general  doctrines  of  the  authoritative  ex- 
pounders of  the  Constitution  :  and  in  the  ab- 
sence both  of  authority  and  disquisition,  the 
Author  has  ventured  to  rely  upon  his  own 
reasonings,  and  has  advanced  his  own  opi- 
nions, so  far  only  as  he  conceives  them  to  be 
confirmed  by  undeniable  principles,  or  esta- 
blished by  analogous  cases. 


PREFACE.  XI 

Besides  the  reported  adjudications  of  the 
Supreme  Court  of  the  United  States,  the 
sources  which  have  been  resorted  to  are,  the 
contemporaneous  exposition  of  the  Constitu- 
tion by  the  authors  of  "  The  Federalist ;"  that 
portion  of  the  "  Lectures"  of  the  late  Chan- 
cellor of  this  State,  Mr.  Kent,  which  relate  to 
the  subject ;  Mr.  Rawle's  "  View  of  the  Con- 
stitution ;''  and  the  more  elaborate  "  Com- 
mentaries" of  Mr.  Justice  Story.  To  all  these 
works  the  Author  acknowledges  his  obliga- 
tions, although  he  must  lament  that  the  last 
mentioned  invaluable  repository  of  Constitu- 
tional learning  did  not  reach  him  in  time  to 
consult  it  more  at  large;  and  in  regard  to  the 
abridgment  of  it  lately  published  by  the  learn- 
ed commentator,  "  for  the  use  of  Colleges  and 
High  Schools,"  it  may  be  observed,  that  both 
from  its  size  and  mode  of  execution  it  seems 
to  aim  at  more  select  and  limited  objects 
than  those  proposed  by  the  present  treatise. 

With  respect  to  the  two  preceding  elemen- 
tary treatises  to  which  the  Author  has  refer- 
red, it  will  be  found  that  he  has  not  coincided 
with  the  restricted  views  taken,  in  the  former, 
of  the  supremacy,  and  in  the  latter,  of  the 
perpetual  obligation,  of  the  Federal  Consti- 
tution ;  but  has  maintained,  upon  both  these 


Xll  PREFACE. 

important  points,  principles  more  favourable, 
as  he  conceives,  to  the  power  and  stability  of 
the  National  Government  than  those  which 
seem  to  be  entertained  respectively  by  the 
learned  authors  of  the  Lectures  on  "  Ameri- 
can Law,"  and  of  the  "  View  of  the  Constitu- 
tion." He  has  not,  however,  differed  from 
such  distinguished  jurists  without  being  sup- 
ported by  the  opinions  of  some  of  the  most 
eminent  statesmen  of  the  present  day,  and  of 
different  parties; — by  the  doctrines  officially 
proclaimed  by  the  President  of  the  United 
States,  and  sustained  in  the  speeches  of  Mr. 
Webster;  nor  without  being  sanctioned,  as  he 
conceives,  by  the  judicial  authority  of  Chief 
Justice  Marshall, — expressly,  upon  one  of  the 
points  in  question,  and  virtually,  upon  the 
other,  by  his  affirmance  of  principles  which 
are  involved  in  its  consideration,  and  must 
eventually  govern  its  decision. 

In  referring  to  the  venerable  name  of  the 
present  Chief  Justice  of  the  United  States, 
the  Author  must  be  understood,  on  this  and 
on  all  other  occasions,  as  adopting  his  indi- 
vidual opinions,  not  less  from  deference  to 
their  official  authority,  than  from  the  convic- 
tion wrought  by  the  luminous  and  profound 
reasonings  by  which  they  are  elucidated  and 


PREFACE.  Xll 

supported.  As  that  eminent  and  revered 
Judge  has  himself  declared  it  auspicious  to 
the  Constitution  and  to  the  country,  that  the 
new  Government  found  such  able  advocates 
and  interpreters  as  the  illustrious  authors  of 
*c  The  Federalist,"  so  it  may  be  regarded 
as  one  of  the  most  signal  advantages  attend- 
ing its  career,  that  its  principles  should  have 
been  developed  and  reduced  to  practice  un- 
der a  judicial  administration  so  admirably 
qualified  in  every  respect  to  expound  them 
truly,  and  firmly  to  sustain  them. 

The  nature  and  design  of  the  present  pub- 
lication dispense  with  the,  necessity,  if  they 
do  not  exclude  the  propriety,  of  marginal  re- 
ferences to  authorities  in  support  of  the  posi- 
tions advanced  in  the  text.  But  it  is  believ- 
ed that  none  are  assumed  without  either  a 
direct  adjudication  upon  the  point,  or  that 
collateral  support  which  is  derived  from  ana- 
logical reasoning  and  precedents,  to  sustain 
it, — or  without  being  warranted  by  the  prac- 
tice of  the  Government  and  the  acquiescence 
of  the  People.  From  the  phraseology  adopt- 
ed, it  may  perhaps  in  every  instance  be  per- 
ceived whether  any  point  of  regulation  or 
construction  be  authoritatively  laid  down  or 
argumentatively  stated.  In  the  former  case. 
B 


XIV  PREFACE. 

the  nature  of  the  authority  may  be  gathered 
from  the  language  of  the  proposition  ;  and 
in  the  latter,  the  premises  from  which  a  co- 
rollary or  an  analogy  is  deduced,  are  distinct- 
ly designated. 

In  arranging  the  materials  thus  collected 
and  derived,  the  form  of  consecutive  and  de- 
pendent propositions  has  been  preferred,  as 
recommended  by  Professor  Dugald  Stewart 
in  reference  to  Moral  Science.  This  method 
had  in  substance  been  adopted  by  Sir  W. 
Blackstone  in  the  outlines  of  his  original  Lec- 
tures on  the  English  Law,  and  has  since 
been  pursued  by  Mr.  Justice  Story  in  his 
Commentaries  on  *the  Constitution  of  the 
United  States.  It  is,  indeed,  peculiarly  ap- 
propriate to  a  work  intended  both  as  a  text 
to  be  enlarged  on,  explained  and  illustrated 
by  a  Lecturer,  and  as  a  class  book  to  be 
used  by  Teachers  who  must  necessarily  ex- 
ercise a  discretion  in  selecting  such  parts  for 
recitation  as  may  be  best  adapted  to  the  age 
and  capacities  of  their  pupils ;  whilst  with 
the  aid  of  a  proper  index,  it  will  be  found 
equally  convenient  for  the  purposes  of  im- 
mediate and  general  reference.  As  to  the 
order  and  distribution  of  the  matter  >  the  Au- 
thor has  again  to  acknowledge  his  obliga- 


PREFACE.  XV 

tions  to  "The  Federalist;"  whose  plan  in 
this  respect  he  has  followed  with  very  little 
other  alteration  than  that  of  transposing  the 
two  branches  into  which  the  subject  is  natu- 
rally divided. 

One  word  more  remains  to  be  added  in  re- 
gard to  the  relation  which  the  work  may  be 
supposed  to  bear  to  the  politics  of  the  day. 
That  it  may  derive  an  additional  interest,  and, 
it  is  to  be  hoped,  an  additional  value  from  its 
reference  to  topics  which  have  of  late  so 
much  occupied  the  public  mind,  and  so  much 
excited  the  passions  of  at  least  a  portion  of 
the  community,  will  not  be  denied.  But  this 
arises  unavoidably  from  the  nature  of  the  sub- 
ject. It  will  be  recollected  that  the  adoption 
of  the  Constitution  of  the  United  States  gave 
birth  to  the  two  great  parties  into  which  the 
country  was  divided  for  many  years  after  it 
went  into  operation;  and,  that  to  this  day, 
the  different  opinions  prevailing  in  regard  to 
its  construction,  as  well  as  to  the  principles 
of  interpretation  applicable  to  it,  are  in- 
fluenced, if  not  governed,  by  the  different 
views  originally  taken  of  the  nature  of  the 
compact.  By  those  whose  intention  it  had 
been  to  establish  a  Supreme  National  Go- 
vernment, operating  upon  the  citizens  of  the 


PREFACE. 


several  States  as  individuals  receiving  protec- 

tion and  owing  allegiance  to  the  Union,  it 

was  liberally  and  beneficially  expounded  in 

order  to  effect  their  end.     By  those  who,  in 

opposition  to  that  design,  had  been  anxious 

to  maintain  the  full  sovereignty  of  the  States, 

and  to  render  the  new  Constitution  a  mere 

league  or  treaty  between  them,  similar  in  its 

character    to    the   former   Confederation,  a 

strict  interpretation  was  contended  for.     It  is 

therefore  impossible  to  adopt  a  particular 

construction   of  the  Constitution  upon   any 

point  involving  these  original  principles  of  op- 

position,  without  conflicting  with  the  opi- 

nions, awakening  the  jealousies,  or  offending 

the  prejudices,  of  one  or  the  other  of  these  par- 

ties ;  or,  what  is  more  to  be  deprecated,  with- 

out appearing  to  enter  the  lists  in  defence  of 

party  doctrines,  or  being  considered  as  en- 

rolled under  the  banners  of  party  leaders,  and 

hazarding  the  hostility  of  those  zealots  upon 

whom  the  mantles  of  the  old  parties  are  now 

claimed  to  have  descended. 

To  which  of  these  parties  the  Author  was 
attached;  what  principles  he  originally  pro- 
fessed, and  has  ever  adhered  to,  he  is  far, 
very  far  from  wishing,  were  it  even  possible, 
to  conceal.  But  it  must  be  remembered  that 


PREFACE.  XVII 

- 

the  original  distinctions  between  those  par- 
ties  had  for  a  long  time  disappeared,  and  al- 
though the  collisions  and  hostility  between 
them  were  occasionally  continued  and  reviv- 
ed, yet  these  contests  were  maintained  on  new 
and  independent  grounds;  and  the  ancient 
tests  were  so  far  omitted  or  forgotten  with 

3 

respect  to  individuals,  that  their  original  creed 
as  to  the  Constitution,  was  either  lost  sight 
of,  or  deemed  obsolete  and*  unimportant. 
It  is  true,  indeed,  that  in  some  parts  of  the 
Union  these  original  distinctions  were  to  a 
certain  degree  preserved,  and  that  of  late 
years  they  have  been  more  extensively  reviv- 
ed ;  but 'in  the  contentions  which  have  thence 
arisen  the  Author  has  had  no  personal  con- 
cern or  sympathy  as  a  partizan.  It  is  long 
since  he  withdrew  from  political  life ;  and  in 
the  Judicial  office  which  he  held  for  some 
years  previous  to  being  called  to  his  present 
station,  he  endeavoured  to  cultivate  those 
qualities  which  the  faithful  performance  of 
judicial  duties  imperiously  demands.  He 
trusts,  therefore,  that  as  he  approached  the 
present  subject  with  no  views  or  feeling  of 
party  interest,  he  has  been  actuated,  in  treat- 
ing it,  neither  by  the  spirit  of  a  mere  politi- 
cian, the  partiality  of  an  advocate,  nor  the 


XVIU  PREFACE 

zeal  of  a  polemic ;  but  that  he  has  proceeded 
under  the  influence  of  sentiments  and  habits 
more  recently  and  sedulously  cherished,  and 
been  enabled,  as  if  bound  by  the  solemn  sanc- 
tion of  an  inquest  of  life?  "to  present  aft 
things  truly,  to  the  best  of  bis  ability,  without 
fear,  favour,  affection,  or  hope  of  reward." 

Columbia  College,  JV.  F. 
August  1st,  1833. 


. 


ANALYSIS. 


Introduction. 

I.  Definition  and  origin  of  political  Constitutions,  as  derived",, 

1.  From  tradition,  or  the  act  of  the  Government  itself. 

2.  From  written  fundamental  compacts. 
Either  of  which  may  be  formed 

1.  On  a  simple  principle  of 

1.  Monarchy. 

2.  Aristocracy* 

3.  Democracy. 

2.  Or  combine  these  three  forms  in  due  proportions, 
by  means  of  the  principle  of  representation  ap- 
plied 

1.  To  the  poivors  of  Government ;  which  are, 

1.  Tlie  Legislative. 

2.  The  Executive. 

3.  The  Judicial. 

2.  To  tire  persons  represented  in  the  Govern- 
ment. 

II.  Foundations  of  representative  Governments  were  laid 

1.  Partially*  in  the  British  Colonies,  in  which  were  es- 
tablished 

1.  Royal  Governments. 

2.  Proprietary  Governments. 

2.  Universally,  in  the  American  States,  open  the  esta- 
blishment of  independent  Governments,  which  secured 
the  enjoyment  of 

1.  The  inalienable  natural  rights  of  individuals. 

2.  The  political   and  civil  privileges  of  the  citizens, 
designed  for  maintaining,  or  substituted  as  equiva- 
lents for,  natural  rights. 

HI.  The  same  fundamental  principles  were  recognized  and 
adopted  upon  the  establishment  of  a  Federal  Government 
by  the  people  of  the  several  Slates. 

1,  In  regard  to  the  principle  of  representation,  as  applied 


XX  ANALYSIS. 

1.  To  the  three  great  deportments  of  Government. 

2.  To  the  individual  citizens  of  the  United  States, 
and  to  the  several  States  of  the  Union. 

2.  In  regard  to  the  distribution  of  the  powers  of  Govern- 
ment, as  the  Constitution  of  the  United  States  contains. 

1.  A  general  delegation  of  the  Legislative,  Execu- 
tive and  Judicial  Powers,  to  distinct  departments ;. 
and 

2.  Defines  the  powers  and  duties  of  each  department 
respectively. 

OUTLINES  of  that  branch  of  Jurisprudence  which  treats  of 
the  principles,  powers,  and  construction  of  the  Constitution, 
are  therefore  to  be  traced, 

FIRST.  With  regard  to  the  particular  structure  and  or- 
ganization of  the  Government. 
SECOND.  In  relation  to  the  powers  vested  in  it,  and  the 

restraints  imposed  on  the  States. 

PART  I.  Of  the  structure  and  organization  of  the  Govern- 
ment, and  tho  distribution  of  its  powers  amongst 
its  several  departments. 

Ch.  1.  Of  the  Legislative  power,  or  Congress  of  the  United 
States. 

1.  Of  the  constituent  parts  of  the  Legislature,  and 
the  modes  of  their  appointment. 

1.  Of  the  House  of  Representatives. 

2.  Of  the  Senate. 

2.  Their  joint  and  several  powers  and  privileges. 

3.  Their  method  of  enacting  laws,  with  the  times 
and  modes  of  their  assembling  and  adjourning. 

Clu  2.  Of  the  Executive  power,  as  vested  in  the  President. 

1.  His  qualifications ;    the  mode  and  duration  of 
his  appointment,  and  the  provision  for  his  sup- 
port. 

2.  His  powers  and  duties. 
Ch.  3.  Of  the  Judicial  power. 

1.  The  mode  in  which  it  is  constituted. 

2.  The  objects  and  extent  of  its  jurisdiction. 

3.  The  manner  in  which  its  jurisdiction  is  distrK 
buted. 

1 .  Of  the  Court  for  the  trial  of  Impeachments. 

2.  Of  the  Supreme  Court. 

3.  Of  the  Circuit  Courts. 

4.  Of  the  District  Courts. 

5.  Of  the  Territorial  Courts. 

6.  Of  powers  vested  in  State  Courts  and  Ma- 
gistrates by  laws  of  the  United  States. 


ANALYSIS.  XXI 

PART  II.  Of  the  nature,  extent,  and  limitation  of  the  powers 
vested  in  the  National  Government,  and  the  re- 
straints imposed  on  the  States,  reduced  to  diiferent 
classes,  as  they  relate 

Ch.  1.  To  security  from  foreign  danger;  which  class  com- 
prehends the  powers 

1.  Of  declaring  war,  and  granting  letters  of  marque 
and  reprisal. 

2.  Of  making  rules  concerning  captures  by  land 
and  water. 

3.  Of  providing  armies  and  fleets,  and  regulating 
and  calling  forth  the  militia. 

4.  Of  levying  taxes  and  borrowing  money. 

Cb.  2.  To  intercourse  with  foreign  nations;  comprising  the 
powers 

1.  To  make  treaties,  and  to  send  and  receive  am- 
bassadors and  other  public  ministers  and  con- 
suls. 

2.  To  regulate  foreign  commerce,  including  the 
power  to  prohibit  the  importation  of  slaves. 

3.  To  define  and  punish  piracies  and  felonies  com- 
mitted on  the  High  Seas,  and  offences  against  the 
laws  of  nations. 

Ch.  3.  To  the  maintenance  of  harmony  and  proper  inter- 
course amongst  the  Statest  including  the  pow- 
ers 

1.  To  regulate  commerce  amongst    the  several 

States,  and  with  the  Indian  tribes. 

2.  To  establish  Post-offices  and  Post-roads. 

3.  To  coin  money,  regulate  its  value,  and  to  fix 
the  standard  of  weights  and  measures. 

4.  To  provide  for  the  punishment  of  counterfeiting 
the  securities  andpubliccoinof  theUnited  States. 

5.  To  establish  an  uniform  rule  of  naturalization. 

6.  To  establish  uniform  laws  on  the  subject  of 
bankruptcies. 

7.  To  prescribe,  by  penal  laws,  the  manner  in  which 
the  public  acts,  records,  and  judicial  proceedings 
of  each  State  shall  be  proved,  and  the  effect  they 
shall  have  in  other  Slates. 

Ch.  4.  To  certain  miscellaneous  objects  of  general  utility  ; 
comprehending  the  powers 

1.  To  promote  the  progress  of  science  and  the 
useful  arts. 

2.  To  exercise  exclusive  legislation  over  the  dis- 
trict within  which  the  seat  of  government  should 
be  permanently  established;  and  over  all  places 


ANALYSIS. 

purchased  by  consent  of  the  State  legislatures 
for  the  erection  of  forts,  magazines,  arsenals, 
dock-yards,  and  other  needful  buildings. 

3.  To  declare  the  punishment  of  treason  against 
the  United  States. 

4.  To  admit  ne\v  States  into  the  Union. 

5.  To  dispose  of,  and  make  all  needful  rules  and 
regulations  respecting  the  territory,  and  other 
property  of  the  United  States. 

6.  To  guarantee  to  every  State  in  the  Union  a  re- 
publican form  of  government;  and  to  protect 
each  of  them  from  invasion  and  domestic  vio- 
lence. 

7.  To  propose  amendments  to  the  Constitution, 
and  to  call  conventions  for  amending  it,  upon  the 
application  of  two  thirds  of  the  States. 

Ch.  5.  To  the  Constitutional  restrictions  on  the  powers  of 
the  several  States  ;  which  are 

1.  Absolute    restrictions,   prohibiting    the    States 
from 

1.  Entering  into  any  treaty  of  alliance  or 
confederation. 

2.  Granting  letters  of  marque  and  reprisal. 

3.  Coining  money;  emitting  bills  of  credit; 
or  making  any  thing  but  gold  or  silver  coin 
a  lawful  tender  in  payment  of  debts. 

4.  Passing  any  bill  of  attainder,  ex  post  facto 
law,  or  law  impairing  the  obligation  of  con- 
tracts. 

5.  Granting  any  title  of  nobility. 

2.  Qualified    limitations  ;  prohibiting  the  States, 
without  the  consent  of  Congress,  from 

1.  Laying  imposts  on  imports  or  exports,  or 
duties  on  tonnage. 

2.  Keeping  troops  or  ships  of  war  in  time  of 
peace. 

3.  Entering  into  any  agreement  or  compact 
with  another  State,  or  with  a  foreign  power. 

4.  Engaging  in  war,  unless  actually  invaded, 
or  in  such  imminent  danger  as  will  not  ad- 
mit delay. 

Ch.  6.  To  the  provisions  for  giving  efficacy  to  the  powers 
vested  in  the  Government  of  the  United  States; 
consisting  of 

1.  The  power  of  making  all  laws  necessary  and 
proper  for  carrying  into  execution  the  other 
enumerated  powers, 


ANALYSIS.  XX111 

2.  The  declaration  that  the  Constitution  and  laws 
of  the  United  States  and  all  treaties  under  their 
authority,  shall  be  the  Supreme  Law  of  the  land. 

3.  The  powers  specially  vested  in  the  Executive 
and  Judicial  departments,  and  particularly  the 
provision  extending  the  jurisdiction  of  the  latter 
to  all  cases  arising-  under  the  Constitution. 

4.  The  requisition  upon  the  Senators  and  Repre- 
sentatives  in   Congress ;   the   members  of  the 
State    Legislatures  ;    and    all    Executive    and 
Judicial  officers  of  the  United  States  and  of  the 
several  States,  to  be  bound  by  oath  or  affirma- 
tion to  support  the  Constitution  of  the  United 
States. 

5.  The  provision  that  the  ratifications  of  the  Con- 
ventions of  nine  Slates  should  be  sufficient  for 
the  establishment  of  the  Constitution  between 
the  States  ratifying  the  same. 

Conclusion. 


OUTLINES 


OP 


CONSTITUTIONAL  LAW, 


INTRODUCTION. 

1.  A  Constitution,  in  its  legal  and  political  sense, 
signifies  the  fundamental  principles  on  which  a  Go- 
vernment is  formed. 

2.  Constitutional  Law,  is  that  branch  of  jurispru- 
dence which  treats  of  those  principles — of  the  prac- 
tical exercise  of  the  powers  of  Government  in  con- 
formity with  them ;  and  of  the  construction  to   be 
given  to  them — in  such  their  application. 

3.  The  origin  of  political  Constitutions  is  as  various 
as  their  different  forms ;  and  Governments  in  their 
form  are  either  simple  or  mixed. 

4.  The  simple  forms  of  Government  are 

1.  Monarchy,  where  all  power  is  vested  in  a  sw- 

gle  individual. 

2.  An  Aristocracy,  where  the  powers  of  Govern- 

ment are  exercised  by  a  select  number,  or 
a  single  body  of  men.     And, 

3.  A  Democracy,  in  which  all  power  is  retained 

in  the  hands  of  the  People,  or  of  the  society 
at  large. 

5.  A  mixed  Government,  is  where  all  three,  01 
any  two  of  the  simple  forms  are  united. 

C 


26  INTRODUCTION. 

6.  A  Constitution  may  exist  under  any  of  these 
forms,  if  the  Government  be  administered  according 
to  established  rules  and  principles,  and  be  the  result 
of  general  consent,  either  actually  expressed  or  fairly 
to  be  implied. 

7.  Hence  a  Constitution  may  be  derived  from  tradi- 
tionary information,  or  from  the  acts  and  proceedings 
of  the  Government  itself,  as  well  as  from  a  written 
compact. 

8.  The  formation  of  a  Constitution,  on  a  single  prin- 
ciple, whether  of  Monarchy,  Aristocracy,  or  Demo- 
cracy, is  the  most  practicable  and  easy  mode  ;  but 
the  union  of  the  three  simple  forms  in  due  propor- 
tions, so  that  each  shall  be  sufficient  to  support  itself 
in  the  exercise  of  its  appropriate  functions,  and  all  be 
made  to  harmonize  and  co-operate,  is  the  most  per- 
fect system,  and  the  only  true  basis  for  a  Democrati- 
cal  Republic. 

9.  This  is  effected  by  the  proper  relative  distribu- 
tion of  the  powers  of  Government  amongst  the  several 
branches,  according  to  the  principle  of  representation  ; 
\vhereby  each  is  constituted,  in  its  respective  depart- 
ment, the  immediate  and  co-equal  representative  of 
the  People,  as  the  direct  source  of  its  authority,  and 
the  sole  ultimate  depositary  of  the  sovereign  power. 

10.  The  powers  of  Government,  are  distinguished 
from  each  other,  as  appertaining  to  the  Legislative, 
Executive,  and  Judicial  departments.     In  the  first  of 
which  is  vested  the  power  of  making  Laws,  or  pre- 
scribing rules  for  the  Government  of  the  community  ; 
in  the  second,  that  of  executing  or  carrying  into  effect 
those  Laws  ;  and  in  the  third,  the  power  of  expound- 
ing and  applying  them,  in  their  operation  upon  indi- 
viduals. 


INTRODUCTION.  27 

11.  In  the  proper  organization  of  these  depart- 
ments, and  the  just  distribution  of  authority  amongst 
them,  with  the  application  of  proper  aids  and  checks 
to  secure  the  necessary  independence  and  efficiency 
of  each,  "  THK  BEST  CONSTIIUTED  REPUBLIC"  is  alone 
to  be  attained. 

12.  These  three  powers  of  Government  cannot  be 
wholly  united,  or  injudiciously  blended  in  the  same 
department,  consistently  with  the  liberties  and  se- 
curity of  the  People ;  and  the  danger  to  public  free- 
dom would  be  equal,  whether  the  same  powers  were 
delegated  to  a  single  magistrate,  or  to  a  numerous 
body. 

13.  If  the  principle  of  representation  be  extended 
only  to  a  part  of  the  Government,  and  other  parts 
exist  in  it  independent  of  that  principle,  the  security 
afforded  by  the  one  is  partial  and  uncertain  ;  whilst 
the  danger  to  be  apprehended  from  the  other,  will 
be  in  proportion  to  its  predominance  in  the  system. 

14.  As  representation  may  be  partial  in  regard  to 
the  powers  of  Government,  so  it  may  be  confined  to 
a  portion  of  the  community ;  and  in  this  respect  the 
system  would  be  objectionable  in  proportion  to  the 
numbers  unnecessarily  excluded  from  representation, 
or  from  the  exercise  of  a  free  and  intelligent  voice 
in  the  appointment  of  their  representatives. 

15.  According  to  the  theory  of  a  Republican  Con- 
stitution, the  right  ojf  representation  is  universal  in  re. 
ference  both  to  the  powers  of  the  Government,  and 
the  delegation  of  their  exercise  ;  but  in  practice  there 
are  exceptions  in  the  application  of  the  rule,  which 
do  not,  however,  impair  it  as  a  general  principle. 

16.  The  great  advantage  of  a  written  Constitution 


98  INTRODUCTION. 

consists  in  its  accurately  defining  the  limits  of  the 
three  great  departments  of  Government,  and  by  pro- 
per checks  and  securities  preserving  unimpaired  the 
principle  of  representation  in  regard  to  the  exercise 
both  of  the  powers  of  Government,  and  the  right  of 
delegating  them  to  the  representative. 

17.  Where  the  Constitution  depends  on  tradition, 
or  is  to  be  collected  from  the  proceedings  of  the  Go- 
vernment itself,  there  can  be  no  stability  in  the  sys- 
tem, and  of  course  no  certainty  of  security  under  it; 
as  every  new  act  of  the  Government  may  introduce 
a  new  principle,  and  the  Legislative  power  may,  from 
its  omnipotence,  alter  the  Constitution  at  its  pleasure. 

18.  A  written  Constitution,  therefore,  is  most  con- 
ducive to  the  freedom,  security,  and  happiness  of  in- 
dividuals, as  it  may  be  appealed   to  by  the  People 
and  enforced  by  the  Judicial  power  as  a  fundamen- 
tal and  paramount  law,  binding  en  the  Legislature  it- 
self. 

19.  The  foundations  of  a  Government  formed  on 
the  principle  of  popular  representation,  were  laid  in 
the  United  States  by  the  institutions  which,  as  Colo- 
nies, they  received  from  England. 

20.  Two  sorts  of  provincial  Governments  were 
established  by  Great  Britain  in  her  American  Colo- 
nies ;  first,  Royal  Governments,  in  which  limited  ter- 
ritorial grants  were  made  to  settlers,  reserving  the 
general  domain  to  the  Crown,  and  providing  for  the 
exercise  of  the  whole  political  and  civil  jurisdiction 
under  its  authority ;  and  secondly,  Proprietary  Go- 
vernments, in  which  the  whole  territory  and  jurisdic- 
tion were  granted  by  the  king  to  one  or  more  indivi- 
duals. 


INTRODUCTION.  29 

21.  In  the  one,  the  Chief 'Executive  Magistrate  wag 
appointed  by  the  Crown  ;  in  the  other,  by  the  Pro- 
prietaries.    In  both,  the  Legislative  power  was  vested 
wholly  or  partially  in  the  People,  subject  in  the  one 
case  to  the  control  of  the  king  in  council,  and  in  the 
other  to  that  of  the  proprietaries. 

22.  In  some  few  of  the  Colonies  the  Supreme  Ex- 
ecutive Magistrate,  and  one  branch  of  the  legislature, 
were  at  first  elected  by  the  'People,  and  in  two  of 
them  so  continued  to  be  chosen  until  the  Revolution  ; 
and  in  all  these  cases  the  power  of  legislation  was 
uncontrolled  by  the  parent  State. 

23.  The  powers  of  the  Crown  being  abrogated  by 
the  declaration  of  independence,  the  People  remain- 
ed the  only  source  of  legitimate  authority  in  all  the 
Colonies  ;   and  .  Governments,   representative   in  all 
their  branches,  were  established  by  them  as  free  arid 
Sovereign  States. 

24.  In  general,  the  Legislative,  Executive,  and  Ju* 
dicial  departments  were  kept  so  far  distinct  as  to 
render  them,  in  a  great  degree,  independent  of  each 
other. 

25.  The  State  Legislatures  were  for  the  most  part 
divided  into  two  branches,  both  chosen  by  the  Peo- 
ple ;  and  all  persons  holding  offices  of  trust  or  pro- 
fit were  excluded  from  them. 

26.  The  Supreme  Executive  Magistrate  was  uni- 
versally rendered  elective  for  a  limited  time  ;  and 
the  superior  officers  in  the  Judicial  department  re- 
ceived their  appointments  from  the  Legislature  or  the 
Executive,  and  in  most  cases  held  their  offices  during 
good  behaviour. 

c2 


30  INTRODUCTION. 

27.  The  civil  and   municipal  institutions  derived 
from  Great  Britain  were  in  general  preserved  by  the 
several  States,  so  far  as  they  were  compatible  with  the 
abolition  of  regal  authority  and  Colonial  dependence. 

28.  Amongst  these  institutions  was  the  Common 
Law  of  England,  which,  before  the  American  Revo- 
lution, had  been  generally  established  as  the  munici- 
pal code  of  the  British  Provinces,  so  far  as  it  was  ap- 
plicable to  their  situation  and  circumstances  ;  and  the 
benefit  of  it  was  claimed  by  the  first  general  Con- 
gress as  a  branch  of  those  "  indubitable  rights  and  li- 
berties" to  which  the  respective  Colonies  were  enti- 
tled. 

29.  By  this  system  of  Law,  the  absolute  and  inalien- 
able rights  of  the  Colonists  as  individuals,  were  recog- 
nized and  secured  to  them  ;  their  relative  rights,  or 
political  and  civil  privileges  as  members  of  society, 
regulated  and  maintained  ;  and  offences  against  public 
justice  investigated  and  punished. 

30.  The  most  essential  of  these  privileges  were 
those  natural  rights  which  are  common  to  all  man- 
kind, and  which,  in  virtue  of  certain  fundamental  laws 
of  England,  were  held  to  be  the  peculiar  birthright 
and  inheritance  of  every  British  subject. 

31.  They  consist  either  of  that  portion  of  natural 
liberty  which  is  not  required  by  the  Laws  of  society 
to  be  surrendered  for  the  public  benefit ;  or,  of  those 
civil  privileges  which  society  engages  to  provide  in 
lieu  of  them. 

32.  The  former  comprehend 

1.  The  right  of  personal  security ;  which  con- 
sists in  the  uninterrupted  legal  enjoyment 
of  life,  health,  and  reputation. 


INTRODUCTION.  31 

2.  The  right  of  personal  liberty ;  which  includes 

the  power  of  removing  the  person  to  what- 
soever place  inclination  may  direct  without 
restraint,  unless  by  due  course  of  law.  And, 

3.  The  right  of  private  property  ;  or  the  free  use 

and  enjoyment  of  a  man's  own  acquisitions, 
without  control  or  diminution,  except  by  the 
Laws  of  the  land. 

33.  The  subordinate  privileges  of  a  similar  cha- 
racter, to  which  the  Colonists  were  entitled  in  lieu  of 
those  natural  rights  surrendered  for  the  general  bene- 
fit, were, 

1.  The  constititution,  powers,  and  privileges  of 

their  provincial  assemblies,  which  were  in- 
tended to  preserve  the  Legislative  power 
exercised  over  them  in  due  health  and  vi- 
gour, and  to  prevent  the  enactment  of  Laws 
destructive  to  general  liberty. 

2.  The  limitation  of  the  King's  prerogative  by 

certain  arid  notorious  bounds  ;  which  was 
designed  as  a  guard  upon  the  Executive 
power  by  retaining  it  within  the  rules  esta- 
blished by  fundamental  Laws. 

3.  The  right  of  applying  to  the  Courts  of  jus- 

tice for  the  redress  of  injuries,  and  of  hav- 
ing justice  administered  impartially  and 
speedily;  the  most  valuable  incidents  to 
which  were  the  right  of  trial  by  jury  ;  and 
the  benefit  of  the  writ  of  Habeas  Corpus, 
as  the  most  effectual  security  of  the  right  of 
personal  liberty. 

4.  The  right  of  petitioning  the  King,  or  either 

branch  of  the  Legislature,  for  the  redress  of 
grievances;  and, 

5.  The  right  of  every  individual  to  keep  arms 

for  his  defence,  suitable  to  his  condition  and 
degree ;  which  was  the  public  allowance,  un- 


02  INTRODUCTION. 

der  due  restrictions,  of  the  natural  right  of 
resistance  and  self-preservation. 

34.  Upon  the  establishment  of  independent  Go- 
vernments, the  several  States  provided  for  the  secure 
and  permanent  enjoyment  by  their  respective  citizens 
of  their  natural  rights,  and  of  the  civil  privileges  de- 
signed for  their  maintenance,  or  substituted  as  their 
equivalents. 

35.  As  additional  safeguards,  they  secured  to  every 
individual  freedom  of  speech,  and  the  liberty  of  the 
press,  uncontrolled  by  any  but  proper   moral  re- 
straints. 

36.  Some  of  the  States  expressly  recognized,  and 
others  tacitly  adopted,  the  English  Common  Law  as 
further  modified  by  the  change  of  Government ;   but 
they  universally  abolished  that  feature  of  the  system, 
which  is  essentially  political, — the  right  of  primogejii- 
ture. 

37.  The  same  natural,  political,  and  civil  rights 
and  privileges  which  had   been  declared  to  be  the 
inalienable  inheritance  of  the  People  as  citizens  of  the 
respective  States,  were,  on  their  becoming  parties  to 
the  federal  compact,  expressly  asserted  to  belong  to 
them  as  citizens  of  the  Union, 

38.  The  Common  Law,  in  its  modified  form,  con- 
stitutes, therefore,  the  basis  of  the  laws  of  all  the  ori- 
ginal members  of  the  Union  ;  and  the  Constitution  of 
the  United  States,  as  well  as  the  Constitutions  and 
Laws  of  the  several  States,  were  made  in  ^reference 
to  the  pre-existing  validity  of  that  system,  both  under 
the  Colonial  and  State  Governments. 

39.  Although  the  existence  of  the  Common  Law 


INTRODUCTION.  33 

is  presupposed  by  the  Constitution  of  the  United 
States,  and  referred  to  for  the  construction  of  its 
powers,  yet  it  seems,  that  under  the  Federal  Govern- 
ment, the  Common  Law,  considered  as  a  source  of 
jurisdiction,  never  was  in  force  ;  but,  considered  as 
the  means  or  instrument  of  exercising  jurisdiction,  that 
system  of  municipal  jurisprudence  does  exist  in  full 
validity. 

40.  The  Constitution,  founded  on  this  basis  and 
on  these  principles,  and  formed  from  these  materials, 
was  "  ordained  and  established"  by  "  the  People  of 
the  United  States,  in  order  to  form  a  more  perfect 
Union,  establish  justice,  insure  domestic  tranquillity, 
provide  for  the  common  defence,  promote  the  gene- 
ral welfare,  and  secure  the  blessings  of  liberty  to 
them  and  their  posterity." 

41.  By  the  terms  of  the  compact,  the  States,  as 
members  of  the  Union,  are  no  longer  regarded  in 
their  sovereign  and  corporate  capacities,  as  they  sur- 
rendered such  portions  of  their  sovereignties  as  were 
requisite  for  the  purposes  of  National  Government ; 
retaining,  however,  their  previous  organization  and 
the  exclusive  control  of  their  local  concerns. 

42.  The  former  compact  between  the  States,  was 
annulled  ;   and   the  People  of  the  several  States,  by 
their  ratification  and  adoption,  in  their  respective  con- 
ventions, of  the  new  Constitution  proposed  to  them 
by  the  General  Convention  who  framed  that  instru- 
ment,— united  with  each  other  in  establishing  a  per- 
manent system  of  National  Government,  operating 
directly  upon  individuals,  for  the  attainment  of  speci- 
fic objects,  for  which  neither  the  States  separately, 
nor  the  former  confederation  between  them,  had 
proved  competent. 


34  ORGANIZATION  PART  I. 

43.  The  principle  of  representation  is  nevertheless 
applied  in  this  Constitution,  not  only  to  the  individual 
citizens  of  the  United  States,  but  also  to  the  indivi- 
dual States  of  the  Union  ;  and  it  pervades  the  three 
great  departments  amongst  which  the  powers  of  Go- 
vernment are  distributed  and  apportioned. 

44.  The  Constitution  of  the  United  States  contains 
a  general  delegation  of  the   Legislative,  Executive, 
and  Judicial  powers  to  distinct  departments,  and  de- 
fines the  powers  and  duties  of  each  branch  respec- 
tively. 

45.  It  may  therefore  be  most  conveniently  exa- 
mined ;  first,  with  regard  to  the  particular  structure 
and  organization  of  the  Government,  and  the  distri- 
bution of  its  powers  amongst  its  several  departments  ; 
and,  secondly,  in  relation  to  the  nature,  extent,  and 
limitation  of  the  powers  vested  in  the  National  Go- 
vernment, and  the  restraints  imposed  on  the  States. 


PART  FIRST. 

ON  THE  STRUCTURE  AND  ORGANIZATION  OF  THE  GOVERN- 
MENT, AND  THE  DISTRIBUTION  OF  ITS  POWERS  AMONGST 
ITS  SEVERAL  BRANCHES. 

46.  The  Legislative  power,  granted  by  the  Federal 
Constitution,  Ts  vested  in  a  Congress  of  the  United 
States,  consisting  of  a  Senate  and  a  House  of  Repre- 
sentatives ;  both  chosen  periodically, — the  former  by 
the  States,  the  latter  by  the  People. 

47.  The  Executive  power  is  vested  in  a  President 
of  the  United  States,  elected,  with  a  Vice  President, 


PART  I.  OP  THE  GOVERNMENT.  35 

for  a  term  of  years,  in  a  mode  and  upon  a  principle 
which  in  effect  combine  the  suffrages  of  the  People 
with  those  of  the  States. 

48.  The  Judicial  power  is  vested  in  one  Supreme 
Court,  and  in  such  inferior  Courts  as  Congress  may 
from  time  to  time  establish, — the  Judges  of  which 
hold  their  offices  for  life,  unless  sooner  removed  on 
conviction  for  misbehaviour. 

49.  The  rule  inculcating  the  separation  of  the  Le- 
gislative, Executive,  and  Judicial  departments,  is  not 
understood  to  require,  in  its  application,  that  those 
branches  should  be  wholly  unconnected  with  each 
other. 

50.  For  unless  they  be  so  far  connected  and  blend- 
ed as  to  give  to  each  one  a  constitutional  check  upon 
both  the  others,  the  degree  of  separation  which  the 
rule  requires  cannot  in  practice  be  maintained. 

51.  The  powers  proper  to  one  department  should 
not  be  directly  and  completely  administered  by  ano- 
ther, nor  should  either  branch  possess,  directly  or  in- 
directly, an  overruling  influence  or  control  in  the  ad- 
ministration of  the  powers  of  both  or  either  of  the 
others. 

52.  In  order  to  maintain  the  requisite  partition  of 
power  amongst  the  respective  departments,  the  inte- 
rior structure  of  the  Government  should  be  so  con- 
trived as  to  render  its  several  constituent  parts,  by 
their  mutual  relations,  the  means  of  keeping  each 
other  within  their  proper  spheres. 

53.  The  Constitution  of  the  United  States  renders 
the  mutual  participation,  to  a  limited  extent,  of  the 
several  branches  of  the  Government  in  each  other's 


36  LEGISLATIVE  DEPARTMENT.  PART  I. 

power,  subservient  to  their  mutual  independence  ; 
and  thus  the  apparent  violation  of  a  fundamental  prin- 
ciple affords  the  best  security  for  its  preservation. 


CHAPTER  I. 

OF  THE  LEGISLATIVE  POWER. 

54.  Under  this  head  may  be  considered :  First, 
The  constituent  parts  of  the  Legislature,  and  the 
modes  of  their  appointment :   Secondly,  Their  joint 
and   several   powers  and   privileges :   and    Thirdly, 
Their  method  of  enacting  Laws,  with  the  times  and 
modes  of  their  assembling  and  adjourning. 

I.  Of  the  constituent  parts  of  the  Legislature,  and 
the  modes  of  their  appointment. 

55.  All  Legislative  powers  granted  by  the  Consti- 
tution, are  vested  in  a  Congress  of  the  United  States 
consisting  of  a  Senate,  and  a  House  of  Representa- 
tives. 

56.  This  division  of  the  Legislature  into  two  co- 
ordinate branches,  was  meant  to  guard  against  the 
evil  consequences  of  sudden  and  strong  excitement 
and  precipitate  measures,  which  had  been  found  to 
prevail  in  single  legislative  bodies. 

57.  A  hasty  decision  is  by  no  means  so  likely  to  be 
made,  when  a  measure  is  liable  to  be  arrested  in  its 
progress ;  and  after  its  adoption  by  one  branch  of  the 
Legislature,  to  be  again  subjected  to  the  same  forms 
and  solemnities  of  deliberation,  and  to  the  jealous  and 
critical  revision  of  another  body  sitting  in  a  different 
place,  and  from  the  delay  thus  induced,  if  from  no 
other  cause,  enabled  to  avoid  the  prepossessions  and 
correct  the  errors  of  the  first. 


CHAP.  I.  CONGRESS.  37 

58.  Single  Legislative  assemblies  without  check  or 
counterpoise,  or  a  Government  with  all  authority  col- 
lected in  one  body  or  department,  have  been  found, 
in  all  ages  in  which  they  have  existed,  corrupt  and 
tyrannical  dominations  of  majorities  over  minorities, 
uniformly  and  rapidly  terminating  in  despotism. 

59.  The  instrbility  and  passion  which  had  marked 
the  proceedings  of  two  of  the  State  Legislatures,  con- 
sisting originally  of  a  single  House,  were  the  subject  of 
much  public  animadversion  at  the  time  of  the  con- 
templated establishment  of  the  new  Federal  Govern- 
ment ;  and  in  subsequent  reforms  of  their  Constitu- 
tions, the  People  of  the. particular  States  referred  to, 
were  so  sensible  of  this  de.fect,  that  in  each  a  Senate 
was  introduced. 

60.  These  examples,  as  well  as  the  experience  af- 
forded by  some  of  the  proceecliDgs  of  a  Congress  cou- 
rt s:ngle  branch,  and  uniting  in  itself  all  the 

Executive  and  Judicial  authority  of  the  Union,  with 
all  the  Legislative  powers  granted  by  the  articles  of 
confederation,  must  have  had  due  influence  in  deter- 
mining the  Federal  Convention  to  divide  the  national 
Legislature  into  two  branches. 

61.  A  further  reason  for  this  division  of  the  Lc 
lative  power  in  the  Government  of  the  LTnited  States, 
arose  from  the  combination  of  the  national  and  fede- 
rative principles  in  the  new  Constitution. 

62.  Upon  just  principle*  of  public  polity,  it  is  essen- 
tial, when  a  People  are  thoroughly  incorporated  into 
one  nation,  that  every  district  or  territorial  subdivi- 
sion of  the  c''m~iunity  should  have  its  proportional 
share  in  the  Government ;  and  that  amongst  indepen- 
dent sovereigns,  bound  together  by  a  simpl     league, 
the  parties,  however  unequal  in  respect  to  territory 

D 


38  LEGISLATIVE  DEPARTMENT.  PART  I, 

a--»H  popu'rtion,  should  each  have  an  equal  voi  e  in 
the  public  councils. 

63.  It  was  therefore  proper,  that  in  a  Republic, 
partaking  both  of  the  national  and  federal  characters, 
the  Government  should  be  founded  on  a  combination 
of  the  principles  of proper,. onal,  and  equal,  represen- 
tation. 

64.  The  application  of  this  rule  of  combined  repre- 
sentation afforded  a  convenient  and  effectual  mode  of 
dividing  the  Legislature  of  the  Union  into  two  co-or- 
dinate branches,   by  constructing  o,.e  of  them  upon 
the  principle  of  proportional,  and  th    other  upon  that 
of  equal,  representation. 

65.  The  House  of  Representatives   is  accordingly 
constituted  with  as  much  conformity  as  practicable, 
to  the  principle  of 'proportional  representation  ;  but  not 
entirely  so.  as  it  is  composed  of  representatives  of  the 
People  of  the  several  States,  and  thus  far  partakes  of 
the  federative  quality. 

66.  It  consists  "  of  members  chosen  every  second 
year  by  the  People  of  the  several  States,"  and  "  the 
times,  places,  and  manner  of  holding  elections  for 
representatives  are  prescribed  in  each  State   by  the 
Legislature  ;"  but  to  guard  against  the  neglect  or  re- 
fusal of  the  States  to  exercise  this  power,  "  Congress 
may  at  any  time  by  law  make  or  alter  such  regula- 


67.  The  electors  of  representatives  in  each  State 
must  possess  "  the  qualifications  requisite  for  elec- 
tors of  the  most  numerous  branch  of  the  State  Legis- 
lature ;"  and  these  qualifications  are  not  uniform,  as 
the  Constitutions  and  practice  of  the  several  States  in 
relation  to  them  are  different  and  various. 


CHAP.  I.  HOUSE   OF  REPRESENTATIVES.  39 

68.  In  general,  the  qualifications  of  electors  of  the 
most  numerous  branch  of  the  State  Legislatures,  are, 
that  they  be  of  the  age  of  twenty-one  years  and  up- 
wards, free  resident  citizens  of  the  State,  and  have 
paid  taxes  thereto. 

69.  In  some  of  the  States  they  are,  morever,  re- 
quired to  possess  property  of  a  certain  description 
and  amount ;  in  some  to  be  white,  as  well  as  free,  citi- 
zens ;  and  in  others  to  possess  all  these  qualifications, 
either  together,  or  in  different  combinations. 

70.  A  representative  in  Congress  must  have  at- 
tained the  age  of  twenty-five  years,  and  been  seven 
years  a  citizen  of  the  United  States  ;  and  must,  when 
elected,  be  an  inhabitant  of  the  State  in  which  he 
is  chosen. 

71.  Representatives  are  apportioned  amongst  the 
several  States  according  to   their  respective  num- 
bers, which  are  determined  in  each  State  by  adding 
to  the  whole  number  of  free  persons,  (including  those* 
bound  to  service  for  a  term  of  year.*,  and  excluding 
Indians  not  taxed),  three  fifths  of  all  other  persons, 

72.  The  Constitution  provides  for  an  actual  enu- 
meration of  the  people   within  three  years  after  the 
first  meeting  of  Congress ;   and  directs  one   to  be 
taken  within  every  subsequent  term  of  ten  years  in 
such  manner  as  Congress  shall  by  law  direct. 

73.  The  number  of  Representatives  cannot  ex- 
ceed  one  for  every  thirty-thousand  of  the  persons  to 
be  computed  ;  but  each  State  is  entitled  to  at  least  one 
Representative. 

74.  The  ratio  of  representation  is  applied  to  the 
representative  numbers  of  the  respective  States,  and 


40  LEGISLATIVE   DEPARTMENT.  PART  1. 

not  to  the  aggregate  numbers  in  all  the  States  ;  nor 
can  an  additional  representative  be  assigned  to  any 
State  on  account  of  any  fractional  number,  which  may 
.emain  after  the- application  of  the  >atio  to  its  re- 
presentative numbers,  even  though  the  fraction  ex- 
ceed 30,000. 

75.  The  Senate  of  the  United  States  is  constituted 
upon  the  principle  of  equal  representation;   which, 
whjle  it  gave  effect  to  the  main  design  of  a  separa- 
tion of  -the  two  branches  of  the  national  Legislature, 
was  evidently  the  result  of  a  compromise  between 
the  larger  and  the.  smajler  States. 

76.  The  Senate  accordingly  consists  of  two  Sena- 
tors from  each  State  ;  and  each  Senator  has  one 
vote :  each  State,  therefore,  has  its  equal  voice  and 
weight  in  the   Senate  of  the  Union,  without  regard 
to  disparity  of  population,  wealth,  or  territory  ;  yet 
as  the  Senators  vote  individually,  without  regard  to 
States,  the  Senate,  in  that  "respect,  partakes  of  the 
proportional  or  national  quality. 

77.  The  Senators  are   chosen  by  the  respective 
State  Legislatures ;  and  if  vacancies  happen  during 
the  recess  of  the  Legislature,  the  Executive  power 
of  the   State    may  make   temporary  appointments 
until  its  next  meeting,  when  the  vacancy  must  be 
filled  in  the  ordinary  manner. 

78.  This  mode  of  electing  Senators  favours  a  se- 
lect appointment,  and  gives  to  the  States  such  an 
agency  in  the  formation  of  the  general  Govern  ,ient 
as  preserves  their  separate  existence,  and  readers 
them,  in  their  political  capacities,  active  members  of 
the  federal  body. 

79.  The  State  Legislatures  respectively  prescribe 


CHAP.   I.  SENATE.  41 

the  times,  places,  and  manner  of  holding  the  elec- 
tions for  Senators,  as  well  as  of  Representatives  hi 
Congress ;  and  Congress  cannot  alter  such  regula- 
tions with  respect  to  the  place,  of  choosing  Sena- 
tors. 

80.  The  Constitution  does  not  direct  whether  the 
appointment  of  Senators  shall  be  made  by  the^'owf, 
or  by  the  concurrent  vote  of  the  two  branches  of  the 
State  Legislatures  ;  hence  difficulties  have  arisen  as  to 
its  true  construction. 

81.  The  difference  between  the  two  modes  is,  that 
on  a  joint  vote,  the  members  of  both  branches  assenv 
ble  together  and  vote  numerically;  whilst  a  concur- 
rent vote  is  taken  by  each  House  voting  separately^ 
when  the  decision  of  the  one  is  subject  to  the  ap- 
proval of  the  other ;  and  the  difficulties  in  question 
have  arisen  in  cases  of  their  disagreement. 

82.  It  has  been  considered  in  some  of  the  States, 
that,  consistently  with  the  Constitution,  the  Law  may 
direct  Senators  to  be  chosen  by  the  joint  vote  or 
ballot  of  the  two  branches  of  the  Legislature,  in  case 
they  cannot  separatery  concur  in  a  choice,  or  even  hi 
the  first  instance,  without  making  such  attempt. 

83.  This  construction  has  been  found  too  conve- 
nient in  practice,  and  has  been  loo  long  settled  by  the 
repeated  recognitions  of  Senators  so  elected,  to  be 
now  disturbed.    But  if  the  question  were  a  new  one, 
it  might  be  maintained,  that  when  the  Constitution 
directed  the  Senators  "  to  be  chosen  in  each  State 
by  the    Legislature  thereof,"  it  meant  the  LegisUv- 
ture  in  its  true  technical  sense,  consisting  of  two  co- 
ordinate branches  acting  in  their  separate  capacities, 
WJthu  constitutional  negative  on  each  other's  proceeif 


42  LEGISLATIVE  DEPARTMENT.  PART  X. 

ings,  and  not  the  members  of  the  two  Houses  assem- 
bled in  one  body  and  voting  indiscriminately. 

84.  Senators  are  elected  for  a  term  of  six  years, 
and  are  arranged  in  three  classes  in  such  a  manner 
that  the  seats  of  one  class  become  vacant,  and  one 
third  of  the  Senate  must  be  regularly  chosen,  every 
two  years ;  corresponding  with  the  expiration  of  the 
term   for  which  the  House  of  Representatives   is 
chosen. 

85.  From  the  superior  weight  and  delicacy  of  the 
trusts  confided  to  the  Senate,  the  Constitution  de- 
clares that  "  no  person  shall  be  a  Senator  that  shall 
not  have  attained  the  age  of  thirty  years,  and  have 
been  nine  years  a  citizen  of  the  United  States ;  and 
who  shall  not,  when  elected,  be  an  inhabitant  of  the 
State  for  which  he  shall  be  chosen." 

86.  No  Senator  or  Representative  can,  during  the 
time  for  which  he  is  elected,  be  appointed  to  any 
civil  office  under  the  authority  of  the  United  States, 
which  shall  have  been  created,  or  of  which  the  emolu- 
ments shall  have  been  increased,  during  that  time  ; 
and  no  person  holding  any  office  under  the  United 
States,  can  be  a  member  of  either  House  during  his 
continuance  in  office.     But  it  is  sufficient  if  he  resign 
the  same  previously  to  taking  his  seat  in  Congress. 

87.  The  next  subject  of  consideration,  in  regard  to 
the  Legislative  power,  is, 

II.  The  privileges  and  powers  of  the  two  Houses  of 
Congress,  both  aggregately  and  separately. 

88.  In  order  to  preserve  a  pure  and  genuine  repre- 
sentation, and  to  control  the  evils  of  irregular  and 
tumultuous  elections,  each  House  is  made  the  sole 


CHAP.  I.  PRIVILEGES  OF  CONGRESS.  43 

judge  of  the  elections,  returns,  and  qualifications  of 
its  own  members. 

89.  As  each  House  acts  in  cases  where  this  power 
is  exercised,  in  a  judicial  capacity,  its  decisions  are 
regulated  by  known  principles  of  Law ;  and  they 
should  be  strictly  adhered  to  as  precedents,  for  the 
sake  of  uniformity  and  certainty. 

90.  A  majority  of  each  House  constitutes  a  quorum 
for  the  transaction  of  business  ;  but  a  smaller  number 
may  adjourn  from  day  to  day,  and  may  be  authorized 
to  compel  the  attendance  of  absent  members,  in  such 
manner,  and  under  such  penalties,  as  each  House  may 
provide. 

91.  Each  House  is  bound  to  keep  a  journal  of  its 
proceedings,  and  from  time  to  time  publish  such  parts 
of  them  as  do  not  require  secrecy  ;  and  to  enter  the 
yeas  and  nays  on  its  journal  on  any  question,  if  de- 
manded by  one  fifth  of  the  members  present. 

9*2.  The  members  of  both  Houses  are  entitled  to 
receive  a  compensation  for  their  services,  to  be  as- 
certained by  Law,  and  paid  out  of  the  Treasury  of 
the  United  States.  And  they  are  in  all  cases,  ex- 
cept treason,  felony,  and  breach  of  the  peace,  privi- 
leged from  arrest  during  their  attendance  at  the  ses- 
sions of  their  respective  Houses,  and  in  going  to  and 
returning  from  the  same. 

93.  In  order  to  preserve  inviolate  the  freedom  of 
deliberation,  no  member  of  either  House  can  be  ques- 
tioned in  any  other  place,  for  any  speech  or  debate 
therein. 

94.  Although  no  express  power  is  given  to  either 
House  to  punish  for  contempts,  unless  when  commit- 


44  LEGISLATIVE  DEPARTMENT.  PART  1. 

ted  by  its  own  members  ;  yet  a  power,  extending  be- 
yond their  own  precincts,  and  affecting  other  per- 
sons, is  exercised  by  both  Houses,  as  incident  to  the 
nature  of  every  Legislative  body. 

95.  As  the  People  are  entitled  to  the  utmost  puri- 
ty and  independence  in  the  conduct  of  their  repre- 
sentatives, and  as  each  House  is,  in  this  respect,  the 
guardian  of  the  interests  of  the  People,  as  well  as  of 
its  own  character,  it  is  its  duty  to  make  immediate 
inquiry  into  any  attempt  on  the  freedom  or  integrity 
of  any  of  its  members. 

96.  From  the  duty  to  inquire,  arises  the  right  to 
punish  in  such  cases,  as  well  as  in  cases  of  immedi- 
ate insult  or  disturbance,  preventing  the  exercise  of 
Is   ordinary  functions  ;  the  existence  and  the  exer- 
cise of  the  right  in  both  cases,  being  equally  founded 
in  the  necessity  of  self-preservation. 

97.  But  the  power  to  punish  in  either  case,  extends 
only  to  imprisonment,  which  can  continue  no  longer 
than  the  duration  of  the  authority  that  awards  it ; 
and  which  necessarily  terminates  (if  no  shorter  pe- 
riod be  limited)  with  the  adjournment  or  dissolution 
of  the  Congress. 

98.  Attempts  to  bribe  or  intimidate  members  of 
the  Legislature,  are,  moreover,  offences  against  the 
Public,  and  subject  the  offender  to  the  usual  course  of 
prosecution  in  a   court  of  law.     But  this  liability 
does  not  exclude  the  jurisdiction  of  the  Legislative 
body,  nor  does  the  interference  of  the  latter,  in  vin- 
dication of  its  character  and  safety,  preclude  the  Ju- 
dicial power  from  taking  cognizance  of  the  same  act, 
as  a  violation  of  the  general  Law. 

99.  The  Legislative  powers  of  the  two  Houses  of 


CHAP.  1.  PRIVILEGES  OF  CONGRESS.  45 

Congress  extend  to  all  subjects  of  a  national  charac- 
ter, and  will  be  particularly  enumerated  and  consi- 
dered in  examining  the  powers  vested  in  the  general 
Government  at  large.  There  are,  however,  some 
constitutional  powers  which  are  peculiar  to  each 
branch  of  the  national  Legislature. 

100.  The  House  of  Representatives  possesses  the 
sole  power  of  impeachment,  or  of  presenting  accu- 
sations to  the  Senate  against  the  public  officers  of 
the  United  States,  for  misconduct  in  their  offices  : 
and  it  has  also  the  exclusive  right  of  originating  all 
bills  for  raising  revenue ;  but  the  Senate  may  pro- 
pose amendments  as  to  other  bills. 

101.  Every  bill  which  may  indirectly  or  conse- 
quentially raise  or  increase  revenue,  or  every  money- 
bill,  in  the  sense  of  the  English  law,  is  not  considered 
a  revenue-bill,  within  the  meaning  of  the  Federal 
Constitution  ;   end  in  the   practical  construction  of 
this  power,  it  Ims  accordingly  been  confined  to  bills 
for  levying  taxes,  in  the  strict  sense  of  the  term,  and 
has  not  been  extended  to  bills  for  other  purposes 
which  may  incidentally  create  revenues. 

102.  The  Senate  has  the  sole  power  of  trying  im- 
peachments ;  and  in  its  exclusive  connexion  with  the 
Executive  power,  it  possesses  a  negative  voice  in  the 
appointment  of  all  officers,  whose  appointments  are 
not  otherwise  provided  for  in  the  Constitution. 

103.  The  advice  and  consent  of  two-thirds  of  the 
Senators  present  are  requisite  to  the  ratification  of 
treaties,  which  must  be  submitted  to  the  exclusive 
consideration  of  the  Senate. 


104. 
are 


04.  Treaties  with  foreign  powers,  if  made  abroad, 
negotiated  on  the  part  of  the  United  States,  by 


46  LEGISLATIVE  DEPARTMENT.  PART  I. 

ministers  accredited  to  those  powers,  under  the  in- 
structions of  the  President ;  and  if  made  in  the  Unit- 
ed States,  they  are  negotiated  between  the  Secretary 
of  State,  under  the  like  instructions,  and  ministers 
accredited  from  foreign  Governments. 

105.  The  Senate  is  not  consulted  in  the  first  in- 
stance, but  when  the  terms  of  the  treaty  are  agreed 
upon  by  the  agents  or  plenipotentiaries  employed  for 
that  purpose,  the  President  (unless  he  altogether  dis- 
approve it),  submits  it  to  the  Senate,  in  whose  delibe- 
rations he  does  not  participate,  but  renders  them  from 
time  to  time  such  information  relative  to  it  as  they 
may  require. 

106.  The  Senate  may  wholly  reject  a  treaty,  or 
they  may  ratify  it  in  part,  or  recommend  additional 
or  explanatory  articles  ;  which,  if  the  President  ap- 
prove,  become  the   subject   of  further   negotiation 
with  the  foreign   power  ;    and  when  the  whole  is 
agreed  to,  on  the  other  part,  and  receives  the  sanc- 
tion of  the  Senate,  the  ratifications  are  exchanged 
between  the  respective  Governments,  and  the  treaty 
becomes  obligatory  upon  both  nations. 

107.  From  the  reason  and  exigency  of  the  case, 
the  proceedings  of  the  Senate,  on  these  occasions,  are 
always  conducted  with  closed  doors ;   and  the  con- 
tents of  the  treaty,  and  all  information  connected 
with  it,  are,  from  motives  of  delicacy  and  policy,  kept 
secret  until  the  termination  of  the  business  renders 
such  reserve  no  longer  necessary. 

108.  The  subjects  remaining  for  consideration  un- 
der the  present  general  head,  are, 

III.  The  method  of  enacting  Laws  by  the  two 
Houses  of  Congress  ;  and  the  times  and 
modes  of  their  assembling  and  adjourning. 


CHAP.  I.        FORMS  OF  PROCEEDING.  47 

109.  The  rules  of  proceeding  in  each  House  are 
substantially  the  same ;  and  are  such  as  are  essential 
to  the  transaction  of  business  with  order  and  safety. 

110.  The   House  of  Representatives  chooses  its 
Speaker,  or  presiding  officer,  from  amongst  its  own 
members ;  and  it  also  chooses  its  other  officers. 

111.  The  Vice  President  of  the  United  States  is 
ex  officio  President  of  the  Senate ;    but  has  no  vote 
therein,  unless  the  Senators  be  equally  divided. 

112.  The  Senate  chooses  its  other  officers;  and 
also  a  President  pro  tempore,  from  its  own  body,  in 
the  absence  of  the  Vice  President,  or  when  he  exe- 
cutes the  office  of  President  of  the  United  States. 

113.  The  proceedings  and  debates  in  both  Houses 
are  conducted  in  public,  except  upon  very  special 
occasions,  and  in  the  transaction  of  Executive  busi- 
ness by  the  Senate. 

114.  Bills,  or  the  original  drafts   or   projects  of 
laws,  are  introduced  into  both  Houses  respectively, 
either  upon  the  order  of  the  House  on  the  reports  of 
standing,  or  select  Committees,  or  upon  leave  granted 
to  an  individual  member  on  motion,  after  due  notice 
of  his  intention  to  move  the  House  to  grant  it. 

115.  Standing  Committees  are  appointed  for  the 
session  upon  all  the  usual  subjects  of  ordinary  legis- 
lation, and  upon  the  general  matters  incident  to  the 
proceedings  of  each  House  respectively. 

1 16.  Select  Committees  are  appointed  from  time 
to  time  upon  special  subjects  as  they  arise,  and  their 
powers  cease  upon  the  performance  of  the  tempo- 
rary duties  assigned  to  them. 


48  LEGISLATIVE  DEPARTMENT.  PART  I. 

117.  Both  standing  and  select  Committees  are  ap- 
pointed in  the  House  of  Representatives  on  the  nomi- 
nation of  the  Speaker,  and  in  the  Senate  most  gene- 
rally by  ballot,  but  sometimes,  and  in  some  cases,  on 
the  nomination  of  the  President  of  the  Senate. 

118.  Bills  are  introduced  by  standing  Committees 
upon  the  order  of  the  House  upon  subjects  embraced 
within  the    general   objects   of   their  appointment, 
either  accompanied  by  a  report  upon  those  general 
objects,  or  upon  a  particular  subject,  relative  thereto, 
or  specially  referred  to  them  ;  or  upon  the  mere  mo- 
tion of  the  Chairman,  or  any  other  member  of  the 
Committee  under  its  direction,  without  previous  no- 
tice. 

119.  Bills  are  in  like  manner  introduced  by  .elect 
Committees,  upon  the  order  of  the  House  on  a  report 
relative  to  the  special  matter  referred  to  them,  or 
upon  motion,  without  previous  notice,  for  leave  to 
report  by  bill. 

120.  Every  bill  must  receive  three  readings  be- 
fore it  can  be  passed  by  either  House ;  and  these  se- 
veral readings  must  be  on  different  days,  unless  upon 
a  special  order  made  by  the  unanimous  consent  of 
the  House,  to  the  contrary. 

12L  No  bill  can  be  committed  or  amended  in 
either  House,  until  it  has  been  read  twice  ;  and  upon 
the  second  reading  of  the  bill,  it  is  declared  to  be 
ready  for  commitment  or  engrossment  ;  if  commit- 
ted, it  is  committed  either  to  a  standing,  or  a  select 
Committee,  or  to  a  Committee  of  the  whole  House  ; 
or  if  the  bill,  instead  of  being  committed,  be  ordered 
to  be  engrossed,  the  House  then  appoints  the  day  on 
which  it  shall  be  read  the  third  time. 


CHAP.  1.         FORMS  OF  PROCEEDINGS.  49 

122.  If  a  bill  be  committed  to  a  Committee  of  the 
whole,  the  House  determines  on  what  day  the  Com- 
mittee shall  consider  it ;  and  when  the  House  resolves 
itself  into  such  Committee,  the  Speaker  leaves  the 
chair,  after  appointing  another  member  to  preside  as 
chairman  of  the  Committee  ;  and  the  Speaker  may 
take  part  in  the  debates  of  the  Committee  as  an  ordi- 
nary member. 

123.  In  the  Senate,  the  Committee  of  the  whole 
is  called  a  quasi  Committee,  because  the  President  of 
the  Senate  acts  as  chairman  of  the  Committee. 

124.  Important  bills  are  generally  referred  to  a 
Committee  of  the  whole  House;  and  every  motion 
or  proposition  for  a  tax  or  charge  upon  the  People, 
or  for  a  variation  in  the  sum  or  quantum  of  a  tax 
or  duty,  and  for  an  appropriation  of  money,  is  requir- 
ed first  to  be  discussed  in  a  Committee  of  the  whole. 

125.  The  object  of  referring  any  matter  to  a  Com- 
mittee of  the  whole,  is  to  allow  greater  latitude  and 
freedom   in    discussing   its    merits,  and   settling  the 
details,  than    is   generally  allowed    by  the  rules  of 
either  House  when  the  proceeding  is  in  the  House 
itself. 

126.  After  commitment  and  report  to  the  House, 
and    at   any  time  before  its   passage,  a  bill  may  be 
recommitted   at   the   pleasure  of  the   House  :  and 
when  a  bill,  either  upon  a  report  of  a  Committee,  or 
after  full  discussion   and  amendment  in  the  House, 
stands  for  the  next  stage  of  its  progress,  the  question 
is,  whether  it  shall  be  engrossed  and  read  a  third 
time  ;  and  this  is  the  proper  time  for  those  who  are 
opposed  to  the   principle  of  the  bill,  to  take  their 
stand    against   it   as   it  is  now  supposed  to  be  as 
perfect,  or  as  little  exceptionable,  as  it  can  be  made. 

E 


50  LEGISLATIVE  DEPARTMENT.  PART  it 

127.  When  a  bill   has  been  engrossed  for  a  third 
reading,  and,  upon  being  read  the  third  time,  has  pass- 
ed one  House,  it  is  transmitted  for  concurrence  to 
the  other,  in  which  it  is  subjected  to  similar  forms  of 
examination  and  discussion. 

128.  If  it  be  altered  or  amended,  or  agreed  to 
without  amendment,  or  totally  rejected,  in  the  House 
to  which  it  has  been  transmitted  for  concurrence,  it 
is,  in  either  case,  returned,  to  the  House  in  which  it  ori- 
ginated, with  a  message  communicating  the  result. 

129.  If  amendments  are  made  in  one  House  which 
are  not  agreed  to  in  the  other,  a  message  to   that 
effect  is  sent  to  the  former,  which  may  either  recede 
from,  or  insist  on,  its  amendments  ;  and  if  the  two 

Houses  cannot  agree,  they  appoint  Committees  of 
conference,  and  upon  receiving  their  report,  either 
House  may  recede  from  its  amendment,  or  from  its 
vote  of  concurrence  therein,  or  accept  a  compro- 
mise suggested  by  the  Committee  ;  or  it  may  adhere 
to  its  former  vote  of  disagreement ;  in  which  last  ease 
the  bill  falls  to  the  ground. 

130.  These  checks  and  formalities,  which  are  in- 
tended to  guard  against  surprise  or  imposition,  were 
originally  borrowed,  although  much  contracted  and 
simplified,  from  the  proceedings  of  the  British  Par- 
liament ;    and   they   prevailed   substantially   in   the 
Colonial  Assemblies,  from  which  they  were  immedi- 
ately adopted   by  the   State   Legislatures,  and  from 
them,  by  each  house  of  Congress. 

131.  When  a  bill,  or  any  other  vote  or  resolution, 
to  which  the  concurrence  of  both  Houses  is  neces- 
sary, (except  the  question  on  the  adjournment  of  the 
Congress),  is  passed  by  both  branches  of  the  Legis- 
lature, it  is  rccmired  by  the  Constitution  to  be  pre- 


CHAP.  1.  MEETINGS  OF  CONGRESS.  51 

sented  to  the  President  of  the  United  States  for  his 
approval. 

132.  If  he  approve  of  the  bill  or  resolution,  he 
signs  it ;  but  if  not,  he  must  return  it,  with  his  objec- 
tions, to   the  House    in  which  it    originated,   which 
must  enter  the  objections  at  large  on  its  journal,  and 
proceed  to  reconsider  it. 

133.  If,  after  such  reconsideration,  two  thirds  of 
that  House   agree   to    pass  the    bill  or  resolution,  it 
must  be    sent,  together    with   the  objections,  to  tho 
other  House,  by  which   it  must  likewise  be  reconsi- 
dered ;  and  if  approved  by  two  thirds  of  that  House 
also,  it  becomes  a  Law,  notwithstanding  the  objec- 
tions of  the  President. 

134.  In  all  such  cases,  the  votes  of  both  Houses 
must    be    determined  by  yeas  and   nays,  or  openly 
ascertained  ;  and  the   names  of  the   persons  voting 
for.  or  against  the  bill  or  resolution,  must  be  entered 
on  the  journal  of  each  House  respectively. 

135.  If  a  bill  is  not  returned  "by  the   President 
within  ten  days  (Sundays  excepted)  after  it  is  pre- 
sented to  him,  it  becomes  a  Law,  in  like  manner  as 
if  he  had  signed  it,  unless  Congress,  by  their  adjourn- 
ment, prevent  its  return. 

136.  Congress   must   assemble   at   least   once  in 
every  year  for  the  despatch  of  the  public  business, 
and  such   meeting  is  fixed   by  the  Constitution  for 
the  first  Monday  in  December,  unless  Congress  shall 
by  Law  appoint  a  different  day. 

137.  Until  the  day  fixed   by  the  Constitution  or 
appointed  by  Law,  the  action  of  Congress  cannot 
commence,  unless  the  President,  in  the  exercise  of 


52  EXECUTIVE    POWER. 


PART  I. 


his  Constitutional  power,  sooner  convene  it,  on  some 
extraordinary  occasion. 

138.  Congress,  by  a  concurrent  resolution,  to  which 
the  assent  of  the  President  is  not  required,  fixes  the 
times  of  its  own  adjournments  within  the  period  of 
its  dissolution ;  but  during  a  session,   neither  House 
can  adjourn  for  more  than  three  days  without  the  as- 
sent of  the  other  ;  nor  can  they  agree  to   adjourn  to 
any  other  place  than  that  in  which  they  shall  be  sit- 
ting.    And  in  cases  of  disagreement  between  the  two 
Houses,  as  to  the  time  of  their  adjournment,  the  Pre- 
sident may  adjourn  them  to  such  time  as  he  may 
think  proper. 

139.  But  as  the  term  for  which  the  House  of  Re- 
presentatives and  one  third  of  the  Senate  are  elected, 
expires  at  the  end  of  every  second   year,  Congress 
must  of  necessity  adjourn  at  the  expiration  of  that 
period  ;  as  the  Congress,  for  the  time  being,  is  in  fact 
dissolved   by  the  operation  of  the  Constitution  and 
Laws,  on  the  third  day  of  March  in  every  alternate 
year. 


CHAPTER  II. 

OF  THE  EXECUTIVE  POWER. 

140.  The  object  of  this  department  is  the  execu- 
tion of  the  Laws  ;  and  good   policy  requires  that  it 
should  be  organized  in  the  mode  best  calculated  to 
effect  that  end  with  fidelity  and  precision. 

141.  No  discretion  is  vested  in  the  Executive  Ma- 
gistrate  in  regard  to  the  wisdom  and  expediency  of 
£he  Laws  after  they  are  duly  made  and  promulgated. 


II.  REQUISITE  QUALITIES.  53 

It  is  his  duty  then  to  execute  them,  whatever  may  be 
his  opinion  as  to  their  justice  or  policy. 

142.  What  has  once  been  declared  under  the  forms 
prescribed  by  the  Constitution  to  be  the  meaning  and 
intention  of  the  Legislature,  must   be  carried   into 
prompt  execution,  and  due  effect  continued  to  be  gi- 
ven to  it  by  the  Executive  department,  until  repealed 
by;  the  Legislature,  or  pronounced  by  the  Judicial  de- 
partment to  be  repugnant  to  the  Constitution. 

143.  Every  individual  is  bound  to  obey  a  Consti- 
tutional Law,  however  objectional  in  other  respects 
it  may  appear  to  him  ;  and  whosoever  refuses  obe- 
dience to  a  Law  on  the  ground  of  its  unconstitution- 
ally, does  so  at  his  peril,  and  is  liable  to  the  legal 
consequence  of  disobedience,  if  the  Law  be  judicially 
declared  to  be  warranted  by  the  Constitution. 

144.  The  legal  presumption  is  always  in  favour  of 
an  act  passed  by  the  Legislature  according  to  the 
forms  of  the  Constitution ;  and  where  the  Chief  Ex- 
ecutive Magistrate  possesses  a  negative  upon  those 
acts,  the  presumption   is  stronger  against  him  than 
against  an  inferior  officer,  or  a  private  person. 

145.  As  the  Executive  power  is  not  only  bound  to 
obey,  but  to  execute,  the  Law,  the  essential  qualities 
required  in  this  department  are  prompiness^  vigour^ 
and  responsibility. 

146.  A  prompt  submission  to  the  Law,  and  a  prompt 
preparation  to  enforce  it,  arc  requisite  both  in  respect 
to  the  authority  from  whicK  it  emanates,  and  in  order 
to  give  it  due  operation  and  effect,  which  should  be 
immediate  and  decisive. 

147.  The  Executive  power  must  also  be  endowed 


54  EXECUTIVE  DEPARTMENT.        PART  I. 

with  energy  in  other  respects ;  for  feebleness  in  this 
department  implies  feebleness  in  the  Government  -r 
and  the  vigour  of  action  imparted  to  the  Executive 
power,  must  be  duly  proportioned  to  the  exigencies 
which  may  arise  under  the  system. 

148.  The  power  vested  in  this  department  should, 
however,  be  proportioned  as  exactly  as  possible  to 
the  occasions  which  may   be  expected  to  require  its 
exercise;  for  if  it  fall  short  of  them,  the  public  sense 
of  the  protection  and  control  of  the  Government  will 
be  weakened,  and  violations  of  the  Law  escape  with 
impunity  ;  and  if  the  quantum  of  power  exceed  the 
exigency  of  the  case,  the  liberties  of  the  People  will 
be  in  jeopardy. 

149.  In   a  written   Constitution,  it  is  difficult  to 
adopt  general  expressions  precisely  descriptive  of  the 
proper  extent  and  limitation  of  this  power ;    but  ta 
guard  against  its  abuse,  as  well  as  to  insure  the  faith- 
ful execution  of  the  general  trusts  confided  to  this  de- 
partment, the  Chief  Executive   Magistrate  should  be 
held  responsible  to  the  People  for  official  misconduct. 

150.  These  three  qualities  of  promptness,  vigour, 
and  responsibility,  are  most  likely  to  exist  in  union 
with  each  other  where  the  chief  Executive  authority 
is  limited  to  a  single  person. 

151.  Unity  is  conducive  to  energy,  which  includes 
both  promptness  and  vigour,  as  well  as  decision,  ac- 
tivity, secrecy,  and  despatch  ;  all  of  which  will  gene- 
rally characterise  the  proceedings  of  one  man  in  a 
much  more  eminent  degree  than. the  proceedings  of  a 
greater  number  ;  and  in  proportion  as  the  number  is 
increased,  those  qualities  will  be  diminished. 

152.  This  unity  in  the  Executive  department  may 


CHAP.  II.  THE  PRESIDENT.  55 

be  destroyed,  either  by  vesting  the  power  in  two  or 
more  Magistrates  of  equal  dignity  ;  or  by  vesting  it 
ostensibly  in  one,  subject,  in  whole  or  in  part,  to  the 
control  and  advice  of  a  council  ;  both  of  which  me- 
thods are  liable  to  similar,  if  not  to  equal,  objections. 

153.  History  and  experience  confirm  the  theoreti- 
cal reasoning  which  renders  it  obvious  that  a  division 
of  the  Executive  power  in  any  form,  between  two  or 
more  persons,  must  always  tend   to  produce  dissen- 
tions  and  fluctuating   measures,  and  diminish  the  re- 
spectability, as  well  as  the  authority  and  efficiency  of 
the  Government. 

154.  The  division  of  the  Executive  power  has  also 
a  direct  tendency  to  destroy  responsibility  ;  for  there 
will  always  be  much  less  temptation   to  depart  from 
duly,  and  much  greater  solicitude  for  character,  where 
there  are  no  partners  to  share  the  odium  of  bad  mea- 
sures, or  to  communicate  by  their  example,   confi- 
dence in  the  perpetration  of  abuses,  from  the  greater 
probability  of  escaping  punishment. 

155.  Phirnlily  in   the  Executive  department,  be- 
sides depriving  the   People  of  these"  great  securities 
for  the  faithful  exercise  of  delegated  power,  tends  to 
depress  the   character  of  the  nation  abroad  ;   whilst 
unity   in  that   branch  of  the  Government  not  only 
affords  greater  security  at  home,  but  increases  that 
efficacy  which  is  requisite  to  command  the  respect 
of  foreign  nations. 

156.  In  accordance  with  these  principles,  the  Ex- 
ecutive power  is  vested  by  the  Constitution  in  a  single 
Chief  Magistrate,  under  the  name  of  "  HIE  PRESIDENT 
OF  THE  UNITED  STATES  ;"  and,  in  the  examination  of 
the  functions  of  this"  high  officer, 

I.   The  qualifications  required  by  the  Constitu- 


56  EXECUTIVE  DEPARTMENT.       PART  I. 

tion  for  the  office  of  President,  the  mode 
and  duration  of  his  appointment,  and  the 
provision  for  his  support,  are  first  to  be  con- 
sidered. 

157.  No  person  is  eligible  to  the  office  of  President, 
except  a  natural-born  citizen,  or  a   citizen  of  the 
United  States  at  the  time  of  the  adoption  of  the  Con- 
stitution, and  who  shall  not  have  attained  the  age  of 
thirty-five  years,  and  been  fourteen  years  resident 
within  the  United  States. 

158.  To  avoid  the  dangers  and  difficulties  to  be 
apprehended,  under  the  most  favourable  circumstan- 
ces, from  the  popular  election  of  a  Supreme  Executive 
Magistrate  for  a  whole. nation,  the  Constitution  does 
not  refer  the  election  of  the  President  directly  to  the 
People  ;   but  confides  the  power  to  a  small  body  of 
electors,  representing  for  that  purpose  the  People  at 
large,  and  appointed  jn  each  State  under  the  direction 
of  the  Legislature. 

159.  Each  State  appoints,  in  such  manner  as  its 
Legislature  may  direct,  a  number  of  electors,  equal 
to  the  whole  number  of  Senators  and  Representa- 
tives, which  it  may  be  entitled  to  send  to  Congress. 

160.  To  prevent  the  person  in  office  at  the  time  of 
the  election  from  having  an  improper  influence  in 
procuring  his  re-election,  it  is  provided  that  no  Sena- 
tor or  Representative  in  Congress,  nor  any  person 
holding  an  office  of  trust  or  profit  under  the  United 
States,  shall  be  an  elector.     But  in  no  other  respect 
does  the  Constitution  define  the  qualifications  of  the 
electors. 

161.  In  some  few  of  the  States  the  electors  are 
appointed  by  the  Legislature  itself,  in  a  mode  pre- 


CHAP.   II.  MODE  OF   ELECTION.  57 

scribed  by  Law  ;  but  in  a  great  majority  of  States, 
the  choice  of  electors  is,  in  accordance  with  the  clear 
sense  and  expression  of  public  opinion,  as  well  as  with 
the  spirit  of  the  Constitution,  referred  to  the  People 
at  large. 

16*2.  Congress  may  determine  the  time  of  choosing 
the  electors ;  and  has  prescribed  by  Law  that  they 
shall  be  chosen  within  thirty-four  days  previous  to 
the  election  of  the  President. 

163.  Congress  has  also  a  discretionary  power  to 
appoint  the  day  on  which  the  electors  shall  give  their 
votes,  which  must  be  the  same  day  throughout  the 
Union  ;  and  is,  in  like  manner,  fixed  for  the  first 
Wednesday  in  December  in  every  fourth  year  suc- 
ceeding the  last  election.  But  the  pl;ice  for  the 
meeting  of  the  electors  is  left  to  the  discretion  of  the 
State  Legislatures,  and  is  usually  the  seat  of  the  State 
Government. 

1G4.  The  electors,  when  assembled  on  the  day 
appointed,  within  their  respective  States,  and  duly 
organized  by  the  appointment  of  a  Chairman  and 
Secretary  from  amongst  themselves,  and  by  the  votes 
of  those  present,  filling  up  vacancies  occurring  from 
death  or  absence,  proceed  to  vote  by  ballot  for  two 
persons,  one  of  whom,  at  least,  must  not  be  an  inha- 
bitant of  the  same  State  with  themselves. 

165.  According  to  the  original  Constitution,  the 
electors  were  not  to  designate,  by  their  ballots,  which 
of  the  two  persons  voted  for,  was  intended  as  Presi- 
dent, and  which  as  Vice  President ;  which  last  officer 
was  nevertheless  to  be  elected  at  the  same  time,  in 
the  same  manner,  and  for  the  same  term,  as  the  Pre- 
sident ;  but  it  merely  provided  that  the  person  hav- 
ing the  greatest  number  of  aggregate  votes  should  be 


58  EXECUTIVE  DEPARTMENT.        PART  I. 

President,  if  such  number  were  a  majority  of  the 
whole  number  of  electors ;  and  that  the  person  hav- 
ing the  next  greatest  number,  if  constituting  such  ma- 
jority, should  be  Vice  President. 

166.  But  a  subsequent  amendment  of  the  Consti- 
tution requires  the  electors  to  name,  in  distinct  ballots, 
the  persons  voted  for  as  President  and  Vice  Presi- 
dent ;  and  declares  that  the  person  having  the  great- 
est number  of  votes  for  President  shall  be  President, 
if  such  number  be  a  majority  of  the  whole  number  of 
electors  appointed  ;  and  that  the  person  having  the 
greatest  number  of  votes  for  Vice  President,  if  con- 
stituting such  majority,  shall  be  Vice  President. 

167.  The  electors  in  the  several  States  are  then 
to  make  distinct  lists  of  all  persons  voted  for  as  Pre- 
sident, and  of  all  voted  for  as  Vice  President ;  and  of 
the  number  of  votes  given   for  each  respectively  ; 
which  lists  they  are  required  by  Law  to  sign  and  cer- 
tify, and  transmit  sealed  to  the  seat  of  Government  of 
the  United  States. 

168.  The  Act  of  Congress  also  directs  the  certi- 
ficates of  the  votes  to  be  delivered  before  the  first 
Wednesday  in  January  next  ensuing  the  election,  to 
the  President  of  the  Senate,  who,  before  the  second 
Wednesday  in  February  thereafter,  in  the  presence 
of  both  Houses  of  Congress,  opens  all  the  certificates  ; 
when  the  votes  are  counted,  and  the  result  declared. 

169.  The  Constitution  does  not  declare  by  whom 
the  votes  are  to  be  counted  and  the  result  declared  ; 
but  the  practice  has  been  for  the  President  of  the 

.  Senate  to  perform  those  duties  ;  the  two  Houses  of 
Congress  being  present  to  witness  the  proceedings, 
and  to  be  prepared  to  act  in  case  no  choice  be  made 
by  the  electors, 


CHAP.  tt.  VICE  PRESIDENT. 

170.  The  person  having  the  requisite  number  of 
votes  for  President,  is  declared  to  be  elected  to  that 
office.    But  if  no  person  have  such  number,  then,  from 
the  persons  having  the  highest  numbers,  not  exceed- 
ing three,  on  the  list  of  those  voted  for  as  President, 
the  House  of  Representatives  are  immediately  by 
ballot  to  choose  the  President. 

171.  In  thus  choosing  the  President,  the  votes  are 
taken  by  States ;  the  representation  from  each  State 
having  one  vote.     A  quorum  for  this  purpose  consists 
of  a  member  or  members  from  two-thirds  of  the 
States,  and  a  majority  of  all  the  States  is  necessary 
to  a  choice. 

172.  Although  the  Constitution  directs  the  choice 
in  this  case  to  be  made  immtdiattly  by  the  House  of 
Representatives,  yet  the  amendment  expressly  de- 
clares their  choice  to  be  valid  if  made  before  the 
fourth  day  of  March  following  the  day  on  which  the 
electoral  votes  are  counted  and  the  result  declared, 

173.  In  case  no  choice  of  President  be  made  by 
the  House  of  Representives,  within  the  period  limited 
for  that  purpose,  the  Vice  President  acts  as  President, 
as  in  the  case  of  the  death,  or  constitutional  disability 
of  the  President. 

174.  The  person  found  to  have  the  requisite  num- 
ber of  votes,  upon  the  counting  of  the  same  in  the 
presence  of  both  Houses  of  Congress,  is  declared  to 
be  Vice  President;  but  if  no  person  have  such  num- 
ber, then  from  the  two  highest  numbers  on  the  list, 
the  Senate  choose  the  Vice  President :  a  quorum  for 
that  purpose  consists  of  two-thirds  of  the  whole  num- 
ber of  Senators,  and  a  majority  of  the  whole  is  ne- 
cessary to  a  choice.     JRut  no  person  constitutionally 
ineligible  to  the  office  of  President,  is  eligible  to  that 
of  Vice  President. 


60  EXECUTIVE  DEPARTMENT.       PART  I, 

175.  The  Constitution,  as  amended,  does  not  pre- 
scribe the  time  and  place,  when  and   where  the  Se- 
nate is  to  choose  the  Vice  President  in  case  no  choice 
be  made   by  the  electors  ;  but  from  analogy  to  the 
provision  and  practice  in  regard  to  the  President,  it 
is  presumed  that  the   Senate  may  elect   by  them- 
selves at  their  ordinary  place  of  meeting,  and  at  any 
time  previous  to  the  ensuing  fourth  of  March. 

176.  Congress   has   by  Law   provided    that   the 
term  of  four  years,  for  which  the  President  and  Vice 
President  are  elected,  shnll  commence  on  the  fourth 
day  of  March  next  succeeding  the  day  on  which  the 
votes  of  the  electors  are  given  ;  and  the  amendment 
of  the  Constitution  adopts  the  same  day  as  the  limi- 
tation of  the  period  within  which  the  House  of  Re- 
presentatives, in  case  of  no  choice   by  the  electors, 
are  to  elect  the  President. 

177.  The  effect,  therefore,  of  this  amendment,  is 
to  render  the  provisions  of  the  Act  of  Congress  re- 
lative to  the  times  appointed  for  the   several  duties 
enjoined  by  the  Constitution,  and  the  amendment  in 
regard  to  the  election  of  President  and  Vice  Presi- 
dent, as  fundamental  and  permanent  as  the  Constitu- 
tion itself. 

178.  The  appointment  of  an  extraordinary  per- 
son  as  Vice  President  of  the  United   States,  and  ex 
officio  President  of  the  Senate,  is  recommended  prin- 
cipally by  two  considerations:  the  first   is,  th;it  to 
secure  at  all  times  a  definite  resolution  of  the  Senate, 
it  is  necessary  that  the  President  of  that  body  should 
have  a  casting  vote  ;  and  to  take  a  Senator  from  his 
seat  as  such,  and  place  him  in  that  of  the  presiding 
officer,  would,  in  regard   to  the  State  he  represents, 
be  to  exchange  a  constant,  for  a  contingent,  vote. 


CHAP.  il.  THE  VICE  PRESIDENT.  61 

179.  The  other  consideration  is,  that  as  the  Vice 
President  may  occasionally  become  a  substitute  for 
the  President  in  the  supreme  executive  office,  all  the 
reasons  which  recommend  the  mode  of  election  pre- 
scribed in  the  first  instance  for  the  one,  apply  with 
great,  if  not  with  equal  force,  to  the  other. 

180.  The  powers  and  duties  of  the  President  de- 
volve on  the  Vice  President,  not  only  when  no  choice 
is  made  of  a  President  either  by  the  electors  or  the 
House  of  Representatives,  but  also  in  case  of  the 
removal  of  the  President  from  office,  or  of  his  death> 
resignation,  or  inability  to  discharge  his  duties  ;  and 
Congress  are  authorized  to  provide  by  Law  for  the 
case  of  a  vacancy  in  both  offices. 

181.  In  pursuance  of  this  power,  Congress  has 
declared,  that  in  the  event  of  such  vacancies,  the 
President  of  the   Senate  pro  tempore,  and,  in   case 
there   should   be  no  President  of  the  Senate,  the 
Speaker  of  the  House  of  Representatives,  should  act 
as  President  of  the  United  States  until  the  vacancy 
should  be  supplied. 

182.  The  evidence  of  a  refusal  to  accept,  or  of  a 
resignation  of  the  office  of  President  or  Vice  Pre- 
sident, is  declared  by  the  same  law  to  be  a  declara- 
tion in  writing  filed  in  the  office  of  the  Secretary  of 
State. 

183.  As  it  may  become  a  question  who  would  be 
the  person  to  succeed  if  the  office  of  President  should 
devolve  on  the  Speaker,  after  the  Congress  for  which 
he  was  chosen  has  expired,  it  is  usual  for  the  Vice 
President  to  withdraw  from  the  Senate  previously 
to  the  adjournment  of  the  session,  in  order  to  afford 
an  opportunity  to  that  body  to  choose  a  President 
pro  tempore. 

F 


62  EXECUTIVE  DEPARTMENT.  PART  f, 

184.  But  if  the  President  pro  temper  e  of  the  Se* 
nate  should  die,  during  a  casual  vacancy  in  the  offices 
of  President  and  Vice  President,  the  Speaker  of  the 
House  of  Representatives  then  extinct,  would  proba- 
bly be  deemed  the  person  upon  whom  the  office  was 
intended  to  devolve. 

185.  If  the  Vice  President  succeed  to  the  office  of 
President,  he  continues  in  it  until  the  expiration  of 
the  term  for  which  the  President  was  elected,  unless 
a  temporary  disability   of  the  President  be  sooner 
removed  ;  and  if  both  offices  be  vacant,  it  is  by  law 
made  the  duty  of  the  Secretary  of  State  to  take 
measures  for  the  election  of  a  President.     But,  from 
a  defect  in  the  amendment,  a  Vice  President,  as  the 
Constitution  now  stands,  cannot  be  elected  until  the 
regular  period. 

186.  The  term  of  four  years,  for  which  the  Presi- 
dent and  Vice   President  are  elected,  was  intended 
to  be   long  enough  to  render  the  Executive  Magis- 
trate firm  and  independent  in   the  discharge  of  his 
trust,  and  to  give  stability  to  his  system  of  adminis- 
tration ;  and  short  enough  to  retain  him  under  a  due 
sense  of  his  dependence  on  public  approbation. 

187.  A   practice  which  has  prevailed   from  the 
commencement  of  the  Government,  for  the  Presi- 
dent to  decline  a  second  re-election,  seems  now  to 
be  permanently  established,  and  to  have  acquired  the 
force  of  a  legal  precedent ;  and  it  has,  in  effect,  limit- 
ed the  period  of  service  to  eight  years,  subject  to  an 
intermediate  re-election. 

188.  The  support  of  the  President  is  secured  by 
a  provision  of  the  Constitution,  which  declares  that 
he  shall  at  stated  times  receive  for  his  services  a 
compensation,  which  shall  neither  be  increased  nor 


CHAP.  H.  POWER  OP  THE  PRESIDENT.  63 

diminished  during  the  period  for  which  he  shall  have 
been  elected. 

189.  This   provision   was   obviously  intended  to 
strengthen  and  preserve  the  proper    independence 
and  energy  of  the  Executive  department ;    but  the 
President  cannot  receive  any  other  emolument  from 
the  United  States,  or  from  any  of  the  States. 

190.  In  pursuing  the  examination  of  the  Executive 
department, 

II.   The  powers    and  duties   of  the  President,   are 
next  to  be  considered. 

191.  The  first  power  vested  in  the  President,  con- 
nects him  with  the  Legislature  in  the  exercise,  to  a  cer- 
tain extent,  of  Legislative  powers,  as  a  security  for  his 
own  independence,  and  a  check  upon  that  most  pow- 
erful branch  of  the  Government ;  and  it  consists  in 
the  qualified  negative   he  possesses  upon  the  acts  of 
Congress. 

192.  Every  act,  order,  resolution,  or  vote,  to  which 
the   concurrence  of  the  two  houses  of  Congress  is 
necessary,  (except  on  the  question  of  their  adjourn- 
ment,) must  be  presented  to  the  President,  and  must 
be  approved  by  him  before  it  can  take  effect,  unless, 
after  being  disapproved  by  him,  it  be  again  passed 
by  two  thirds  of  both  Houses. 

193.  Without  this  power  the  Executive   depart- 
ment  would  be  unable  to   sustain  itself  against  the 
propensity  of  the  Legislature  to   encroach  upon  the 
rights,  and  absorb  the  powers,  of  the  weaker  branches? 
of  the  Government. 

194.  The  President  might  gradually  be  stripped 
of  his  authority  by  successive  concurrent  resolutions 


64  EXECUTIVE  DEPARTMENT.  PART  1. 

of  the  Senate  and  House  of  Representatives,  or  so 
weakened  as  to  be  ultimately  annihilated  by  a  single 
vote  of  the  more  popular  branch  of  the  Legislature, 
unless  he  possessed  this  check,  as  a  means  of  pre- 
venting the  Legislative  and  Executive  powers,  from 
being  united  in  the  same  hands. 

195.  This  power,  not  only  serves  as  a  defence  to 
the  Executive  authority,  but  furnishes  an  additional 
safeguard  against  the  enactment  of  improper  Laws, 
and  secures  the  community  against  the  effects  of  pre- 
cipitancy, or  of  any  impulse  or  excitement  hostile  to 
the  public  welfare,  that  may  happen  temporarily  to 
influence  a  majority  of  the  Congress. 

196.  The  President  is  constituted  Commander  in 
Chief  of  the  Army  and  Navy  of  the  United  States, 
and  of  the  Militia  of  the  several  States,  when  called 
into  the  actual  service  of  the  Union. 

197.  The   command  and  disposal  of  the  public 
force  to  execute  the  Laws,  maintain  domestic  tran- 
quillity, and  resist  foreign  oppression,  are  powers  ob- 
viously of  an  Executive  nature ;  and  particularly  re- 
quire the  exercise  of  the  qualities  characteristic  of 
this  department ;  and' they  have  uniformly  been  ap- 
propriated to  it,  in  every  well  organized  Government. 

198.  The  President  has  the  sole  power  of  granting 
reprieves  and  pardons  for  offences  against  the  United 
States,  except  in  cases  of  impeachment ;  the  neces- 
sity of  which  authority  in  every  Government,  arises 
from  the  infirmities  incident  to  the  administration  of 
human  justice. 

199.  But  were  that  administration  perfect,  policy 
would  sometimes  require  the  remission  of  a  punish- 
ment strictly  due,  for  a  crime  clearly  ascertained  j 


CHAP.  II.  DUTIES  OF  THE  PRESIDENT.  65 

and  both  humanity  and  policy  dictate  that  this  power 
should  be  as  unrestricted  as  possible  ;  and  hence  the 
expediency  of  vesting  it  in  the  President  alone. 

. 

200.  The  President  has  power,  by  and  with  the 
advice  and  consent  of  the  Senate,  to  make  Treaties, 
provided  two  thirds  of  the  Senators  present  concur. 

201.  As  Treaties  are  declared  by  the  Constitution 
to  be  a  part  of  the  supreme  Law  of  the  land,  as  by 
their  means  new  relations  are  formed,  and  obliga- 
tions contracted  with  foreign  powers,  it  would  seem 
most  consonant  with  the  principles  of  a  Republican 
Government,  that  the  right  of  making  Treaties  should 
be  vested  in  the  Legislative  department. 

202.  But  the  preliminary  negotiations  which  are 
required,  and  the   secrecy  and  despatch  proper  to 
take  due  advantage  of  a  sudden  and  favourable  turn  in 
public  affairs,  render  it  more  expedient  that  this  pow- 
er should  be  confided  to  the  Executive. 

203.  Although  the  power  of  making  treaties  par- 
takes more  of  the  Legislative  than  of  the  Executive 
character,  yet  it  does  not  fall  strictly  within  the  de- 
finition of  either.     It  relates  neither  to  the  enacting 
of  new  Laws,  nor  to  the  execution  of  those  which 
exist.     Its  objects  are  contracts,  which  have,  indeed, 
the  force  of  Law,  but  derive   that  force  from  the 
obligations  of  good  faith  amongst  nations. 

204.  Treaties  are  not  rules  of  action  prescribed 
by  the  Supreme  Legislative  power,  to  the  citizens  of 
the  State ;  but  agreements  between  sovereign  and 
independent  States. 

205.  The  power  in  question  accordingly  consti- 
tutes a  distinct  department  in  the  Government  of  the 


66  EXECUTIVE  DEPARTMENT.        PART  I. 

United  States ;  formed  from  the  association  of  one 
branch  of  the  Legislature  with  the  Executive  power, 
and  for  this  purpose,  the  Constitution  invests  the 
Senate  with  the  attributes  of  an  Executive  Council. 

206.  The  qualities  requisite  in  the  management  of 
national  intercourse,  indicate  the  President  as  the 
most  fit  organ  of  communication  with  foreign  powers, 
and  the  efficient  agent  in  the  conclusion  of  treaties ; 
•whilst  the  importance  of  the  trust,  and  the  operation 
of  Treaties  as  Laws,  strongly  recommend  that  they 
should  be  made  under  the  advice  and  control  of  a 
portion  of  the  Legislative  power. 

207.  The  Senate  was  selected  for  this  purpose, 
not  only  because  the  deposit  of  the  power  in  that 
body,  imparts  additional  weight  and  security  to  it  as 
the  weaker  branch  of  the  Legislature,  but  because, 
from  its  smaller  number,  it  may  be  more  easily  as- 
sembled, and  from  its  greater  permanence,  it  is  pre- 
sumed to  be  governed  by  steadier  and  more  syste- 
matic views  of  public  policy,  than  the  House  of  Re- 
presentatives ;  whilst  these  causes  combined,  would 
enable  it  to  act  with  promptitude  and  vigour. 

208.  The  President  is  further  invested  with  the 
power  to  nominate,  and  by  and  with  the  advice  and 
consent  of  the  Senate  to  appoint,  Ambassadors,  other 
public  Ministers  and  Consuls,  the  Judges  of  the  Su- 
preme Court,  and  all  other  officers  of  the  United 
States  whose  appointments  are  not  otherwise  provid- 
ed for,  and  which  may  be  established  by  Law.     But 
Congress  may  vest  the  appointment  of  such  inferior 
officers  as  they  may  think  proper,  in  the  President 
alone,  in  the  Courts  of  Law,  or  in  the  heads  of  de- 
partments. 

209.  The  exercise  of  such  a  power  by  the  People 


CHAP.  H.  DUTIES  OF  THE  PRESIDENT.  67 

at  large  would  be  impracticable ;  and  a  concurrent 
right  of  nomination  in  the  two  Houses  of  Congress, 
or  between  the  President  or  any  other  select  body  of 
men,  would  afford  greater  temptation  and  opportunity 
to  intrigue,  favouritism,  and  corruption,  and  release 
the  appointing  power  from  all  real  responsibility. 

210.  The  power  of  selecting  the  heads  of  the  de- 
partments established  to  aid  the  President  in  the  dis- 
charge of  his  Executive  duties, — of  nominating  agents 
to  whom  the  immediate  conduct  and  management  of 
international  affairs  and  the  negotiation  of  treaties  are 
confided  ;  and  of  those  officers  to  whom  the  adminis- 
tration of  justice  is  committed,  is,  with  peculiar  pro- 
priety, vested  in  the  Chief  Magistrate,  who  is  held 
responsible  for  those  acts  of  his  immediate  assistants 
and  confidential  advisers,  which  receive  his  sanction  ; 
who  is  charged  with  the  superintendence  of  foreign 
relations,  and  who  is  bound  to  see  both  Treaties  and 
the  Laws  faithfully  executed. 

211.  The  association  of  the  Senate  with  the  Presi- 
dent, in  the  exercise  of  this  power,  is  an  exception  to 
the  general  delegation  of  Executive  authority,  which 
can  never  be  attended  with  a  mischievous  effect,  but 
must  at  all  times  operate  as  a  salutary  check  upon 
the  misinformation  or  errors  of  the  President ;  whilst 
it  serves  further  to  increase  the  weight  of  the  Senate, 
as  a  counterpoise  to  the  other  more  numerous  and 
popular  branch  of  the  Legislature, 

212.  To  prevent  the  inconvenience  which  would 
arise  from  occasional  vacancies  in  office,  when  the 
Senate  is  not  in  session,  the  President  has  power  to 
fill  up  all  vacancies  which  may  happen  during  its  re- 
cess ;  by  granting  commissions  which  expire  at  the 
end  of  the  next  session  of  Congress* 


68  EXECUTIVE  DEPARTMENT.       PART  I. 

213.  The  "vacancies"  in  question  are  understood 
to  be  such  as  occur  from  death,  resignation,  promo- 
tion, or  removal ;  and  the  Constitutional  authority  of 
the  President,  has  been  held  by  the  Senate  not  to  ex- 
tend to  appointing  and  commissioning  during  the  re- 
cess of  the  Senate,  Ambassadors  or  Ministers  to  fo- 
reign nations,  where  no  such  appointments  had  before 
been  made. 

214.  The  word  "  happen"  has  also  been  held  by 
the  Senate,  to  bear  relation  to  some  casualty  not  pro- 
vided for  by  Law.     If,  therefore,  the  Senate  are  in 
session  when  new  offices  are  created  by  Law,  and 
nominations  are  not  then  made  to  them  by  the  Presi- 
dent, he  cannot  appoint  to  such  offices  during  the  re- 
cess, as  the  vacancy  does  not  then  happen. 

215.  When  a  commission  has  been  signed  by  the 
President,  the  appointment  is  final  and  complete  ;  and 
the  officer  has  then  conferred  on  him   legal  rights 
which  cannot  be  resumed.    Until  then,  the  discretion 
of  the  President,  as  to 'the  appointment,  may  be  exer- 
cised ;  but  from  that  moment,  the  latter  is  irrevoca- 
ble ;  and  the  power  of  the  President  over  the  office  is 
then  terminated,  in  all  cases  where  by  Law  the  of- 
ficer is  not  removable  by  him. 

216.  The  Constitution  mentions  no  power  of  re- 
moval, by  the  Executive  department,  of  any  of  the 
officers  of  the  United  States.     But  as  the  tenure  of 
office  of  none,  except  those  in  the  Judicial  depart- 
ment, is  declared  to  be  during  good  behaviour,  it  fol- 
lows that  all  others  must  hold  their  offices  during 
pleasure  ;  unless  in  cases  where  Congress  has  provid- 
ed for  some  other  duration  of  office. 

217.  So  far  as  Congress  constitutionally  possesses 
the  power  to  regulate  and  delegate  the  appointment 


CHAP.  II.  DUTIES  OF  THE  PRESIDENT.  by 

of  "  inferior  officers ;"  so  far,  it  may  prescribe  the 
term  of  office,  and  the  manner  in  which,  and  the  per- 
sons by  whom  the  removal,  as  well  as  the  appoint- 
ment, shall  be  made. 

218.  In  the  absence  of  all  legislation  upon  the  sub- 
ject, it  is  settled  that  the   power  of  removal  is  impli- 
citly vested  in  the  President,  without  any  control  or 
co-operation  on  the  part  of  the  Senate  ;  and,  in  regard 
to  appointments  confided  to  him  by  the  Constitution, 
it  seems  also  to  be  settled,  that  Congress  can  give  no 
duration  of  office  which  is  not  subject  to  the  Presi- 
dent's power  of  removal ;  as  all  its  legislation  hitherto 
in  such  cases,  recognizes  the  .Executive  power  of  re- 
moval. 

219.  The  President  may,  on  extraordinary  occa- 
sions, convene  both  Houses  of  Congress,  or  either  of 
them ;  and  in  case  of  disagreement  between  them, 
with  respect  to  the  time  of  their  adjournment,  he  may 
adjourn  them  to  such  time  as  he  may  think  proper. 

220.  He  may  require  the  opinion,  in  writing,  of  the 
principal  officers  in  each  of  the  Executive  depart- 
ments, upon  any  subject  relating  to  the  duties  of  their 
respective  offices.     But  he  does  not  possess  a  like 
authority  with  regard  to  the  Judicial  department. 

221.  It  is  the  duty  of  the  President  to  receive  Am- 
bassadors and  other  public  ministers  from  abroad  ; 
and,  as  incident  to  this  duty,  he  is  undertsood  to  pos- 
sess authority  to  refuse  to  receive  or  acknowledge 
them ;    and  to  dismiss  those  who,  after  having  been 
received,  become  obnoxious  to  censure,  or  unfit  to  be 
allowed  their  privileges,  by  reason  of  their  improper 
conduct,  or  from  political  events. 

222.  The  remaining  duties  of  the  President  consist 
in  giving  information  from  time  to  time  to  Congress, 


70  EXECUTIVE  DEPARTMENT.  PART  I. 

of  the  state  of  the  Union,  and  recommending  to  their 
consideration  such  measures  as  he  shall  judge  neces- 
sary or  expedient.  He  is  moreover  required  to  com- 
mission all  officers  of  the  United  States,  and  general- 
ly and  comprehensively  tl  to  take  care  that  the  Laws 
be  faithfully  executed."*"* 

223.  The  incidental  powers  belonging  to  the  Exe- 
cutive department,  are  necessarily  implied  from  the 
nature  of  the  duties  confided  to  it ;  and  amongst  them 
is  included  the  power  to  perform  the  duties  speci- 
fically entrusted  to  that  branch  of  the  Government, 
Without  obstruction  or  impediment. 

224.  The  President,  therefore,  is  not  liable  to  ar- 
rest, imprisonment,  or  detention,  whilst  in  the  dis- 
charge of  his  office  ;  and  for  this  purpose,  his  person 
is  deemed,  in  civil  cases  at  least,  to  possess  an  official 
inviolability. 

225.  In  the  exercise  of  his  political  power,  as  dis- 
tinguished from  his  ministerial  duties  in  the  execution 
of  the  Laws,  he  is  to  use  his  own  discretion,  and  is 
amenable  only  to  his  country  and  his  own  conscience. 
His  decision  in  relation  to  these  powers  is  subject  to 
no  direct  control ;  and  his  discretion,  when  exercis- 
ed, is  conclusive.     But  he  has  no  authority  to  control 
other  officers  of  the  Government,  with  respect  to 
duties  imposed  on  them  by  Law,  in  cases  not  within 
his  political  power. 

226.  Before  he  enters  on  the  execution  of  his  of- 
fice, he  is  required  by  the  Constitution  to  take  an  oath 
or  affirmation,  that  he  will  "  faithfully  execute  the 
office  of  President  of  the  United  States,  and  to  the 
best  of  his  ability,  preserve,  protect,  and  defend  the 
Constitution  of  the  United  States,'* 


CHAP.   II.  SUBORDINATE  BRANCHES.  71 

227.  But,  in  addition  to  all  the  precautions  to  pre- 
vent abuses  of  the  Executive  trust,  manifest  in  the 
mode  of  his  appointment,  the  limitation  of  his  term  of 
service,  the  restrictions  imposed  on  the  exercise  of 
his  powers,  and  the  solemn  oath  required  to  be  taken 
by  him,  the  Constitution  renders  him  amenable  to  jus- 
tice for  mal-administration  in  his  office  ;  and  he  may 
be  impeached   for  treason,  bribery,  and  other  high, 
crimes  and  misdemeanors,  and,  on  conviction,  be  re- 
moved from  office. 

228.  To  aid  the  President  in  the  discharge  of  the 
several  branches  of  his  Executive  functions,  the  Con- 
stitution contemplates  and  recognizes  certain  subordi- 
nate departments,  with  their  respective  heads ;  which 
have  accordingly  been  defined  and   established  by 
Law. 

229.  The  first  of  these  auxiliary  branches  of  the 
Executive  power,  is  "  the  Department  of  State,"  and 
the  principal  officer  therein   is   denominated  "  the 
Secretary  of  State,"  who  performs  such  duties  as 
from  time  to  time  are  committed  to  him  by  the  Pre- 
sident, relative  to  foreign  intercourse  and  public  mi- 
nisters and  consuls,  or  to  negotiations  with  foreign 
powers,  or  to  memorials  or  other  applications  from 
foreign  ministers  or  other  foreigoers,  or  to  such  other 
matters  as  the  President  shall  assign  to  his  depart- 
ment. 

230.  The  Secretary  of  State  conducts  the  business 
of  his  office  in  such  manner  as  the  President  from 
time  to  time  directs ;   keeps  the  Seal  of  the  United 
States,  and  makes  out  records,  and  seals  all  civil  com- 
missions to  officers  of  the  United  States,  who  are  ap- 
pointed by  the  President,  by  and  with  the  advice  and 
consent  of  the  Senate,  or  by  the  President  alone. 


72  EXECUTIVE  DEPARTMENT.       PART  I. 

231.  The  next  subordinate  and  auxiliary  depart- 
ment, is  the  "  Treasury  Department ;"  the  principal 
officer  or  head  of  which  is  styled  "  The  Secretary  of 
the  Treasury ;"  whose  duties  relate  to  the  superin- 
tendence of  the  finances,  the  support  of  the  credit, 
the  collection  and  management  of  the  revenue,  and 
the  regulation  of  the  expenditure  and  accounts  of  the 
United  States. 

232.  "  The  Secretary  of  the  Treasury"  is  required 
by  Law,  to  prepare  and  lay  before  Congress  at  the 
commencement  of  every  session,  a  report  on  the 
finances,  containing  estimates  of  the  public  revenues 
and  expenditures,  and  plans  for  improving  the  public 
resources ;   and   to  report  and  give  information  to 
either  branch  of  the  Legislature,  in  person  or  in  writ- 
ing as  he  may  be  required,  respecting  all  matters  re- 
ferred to  him,  or  which  appertain  to  his  office  ;  and 
generally  to  perform  all  such  services  relative  to  the 
public  finances  as  he  shall  be  directed. 

233.  The  next  subordinate  branch  of  the  Execu- 
tive department,  is  "  The  Department  of  War ;"  the 
head  of  which  is  denominated  "  The  Secretary  for 
the  Department  of  War,"  and  executes  such  duties 
as  are  entrusted  to  him  by  the  President,  relative  to 
military  commissions,  or  to  the  land  forces  or  warlike 
stores  of  the  United  States,  or  to  such  other  matters 
respecting  military  affairs,  and  the  granting  of  lands 
for  military  services,  or  relative  to  "  Indian  affairs," 
as  are  assigned  to  his  department. 

234.  The  last  branch  of  the  Executive  department, 
established  as  auxiliary  to  the  President,  is  "  The  De- 
partment of  the  Navy  ;"  the  chief  officer  of  which 
is  styled  "  the  Secretary  of  the  Navy  ;"  whose  duty 
it  is  to  execute  such  orders  as  he  receives  from  the 
President,  relative  to  the  procurement  of  naval  stores 


CHAP.  III.  JUDICIAL  POWER.  73 

and  materials,  and  the  construction,  armament,  equip- 
ment, and  employment  of  vessels  of  war,  as  well  as 
all  other  matters  connected  with  the  naval  establish- 
ment of  the  United  States. 

235.  In  case  of  a  vacancy  in  any  of  these  Execu- 
tive offices,  the  President  may  authorize  any  person 
at  his  discretion,  to  perform  the  duties  of  head  of  the 
department,  until  a  successor  be  appointed,  or  such 
vacancy  be  filled. 


CHAPTER  III. 


OF  THE  JUDICIAL  POWER. 

236.  The  Judicial  Power,  is  that  branch  of  the 
Government  to  which  the  administration  of  justice, 
and  the  interpretation  of  the  Constitution  and  Laws 
is  entrusted ;   and  no  Government  can  be  complete 
in  its  form,  nor  perfect  in  its  principles,  without  such 
a  distinct  and  independent  department. 

237.  A  Constitution  which  omitted  to  establish  an 
adequate  Judicial  Power,  could  not  be  successfully 
carried  into  effect ;  and  if,  instead  of  being  separated 
and  rendered  independent,  that  Power  were  blended 
with  one  or  both  of  the  other  departments,  or  if  the 
officers  charged  with  its  administration  were  depend- 
ent on  either  of  the  former,  the  dignity,  efficiency, 
and  utility  of  this  department  would  be  destroyed. 

238.  The  Judicial  and  the  Executive  departments 
are  mutually  auxiliary,  and  the  former  partakes,  in  a 
measure,  of  the  nature  of  the  latter.     It  also  partici- 
pates, in  some  degree,  in  the  Legislative  Power,  as 
the  Judicial  construction  of  Legislative  acts  is  receiv- 
ed as  binding  and  conclusive. 

G 


74  JUDICIAL  DEPARTMENT.  PART  t. 

239.  To  make  Laws,  and  to  execute  them,  are  the 
respective  objects  of  the  Legislative  and  Executive 
departments,  and  are,  indeed,  the  two  principal  ope- 
rations of  Government ;  but  Laws  cannot  be  correct- 
ly and  fully  executed,  without  a  power  in  the  Consti- 
tution to  expound  and  apply  them. 

240.  Under  a  written  Constitution,  founded  upon 
the  principle  of  representation,  and  establishing  a  just 
division  of  the  three  branches  of  Government,  the 
Judicial  department  exercises,  moreover,  the  higher 
function,  of  expounding  the  Constitution,  and  thereby 
testing  the  validity  of  the  acts  of  the  Legislature  ;  and 
hence  the  greater  necessity  of  securing,  by  funda- 
mental provisions,  the  independence  of  the  Judiciary. 

241.  The  Judicial  Power  in  every  Government 
must  be  co-extensive  with  the  power  of  legislation ; 
and  if  by  express  terms  it  should  be  restricted  to  a 
part  only  of  the  subjects  of  legislation,  the  whole  sys- 
tem would,  in  that  proportion,  be  impaired  in  effi- 
ciency and  value.     But  the  authority  of  the  Judiciary 
cannot  be  made  to  exceed  the  Legislative  power,  as 
such  excess  would  be  inconsistent  with  its  nature. 

242.  The  Constitution  of  the  United  States  recog- 
nizes a  Judicial  Power,  not  as  an  adjunct  to  the  Ex- 
ecutive, but  as  a  necessary  and  substantive  part  of 
the  Government ;   and  this  was  the  more  requisite, 
from    the  extraordinary  complications,  unavoidably 
resulting  from  the  nature  of  the  Union,  of  the  autho- 
rity of  the  United  States,  with  that  of  the  several 
States. 

243.  The  Judicial  Power  of  the  United  States  is 
accordingly  vested  "in  one  Supreme  Court,  and  in 
such  inferior  Courts  as  Congress  may  from  time  to 
time  ordain  and  establish." 


CHAP.  HI.         MODE   IN  WHICH  CONSTITUTED.  75 

244.  A  Chief  Justice,  and  other  Judges  are  con- 
templated by  the  Constitution  ;  but  the  complete  or- 
ganization of  the  Supreme  Court,  as  well  as  of  the 
tribunals  inferior  and  subordinate  to  it,  is  provided 
for  by  Law. 

245.  In  reviewing  the  organization  of  the  Judicial 
Power  under  the  Constitution  and  Laws  of  the  United 
States,  it  will  be  proper  to  consider  :  First,  The  mode 
in  which  this  department  is  constituted  ;  Secondly,  The 
objects  and  extent  of  its  jurisdiction  ;  and,  Thirdly^ 
The  manner  in  which  that  jurisdiction  is  distributed 
amongst  the  several  Courts. 

I.  Ms  to  the  mode  in  which  this  department  is  con- 
stituted. 

246.  The  mode  of  appointment,  by  the  President 
and  Senate,  as  prescribed  by  the  Constitution,  is  not 
only  generally  advantageous,  but  peculiarly  proper, 
in  regard  to  Judicial  officers. 

247.  The  just  and  vigorous  investigation  and  pu- 
nishment of  every  species  of  fraud  and  violence,  and 
the  exercise  of  the  power  of  compelling  every  man 
to  the  punctual  performance  of  his  contracts,  are  du- 
ties which,  although  the  faithful  discharge  of  them 
will  command  the  calm  approbation  and  respect  of 
the  candid  and  judicious  portion  of  the  community, 
are  not  in  their  nature  of  the  most  popular  character.; 
and  the  fittest  men  would  seldom  be  selected  to  fulfil 
them,  by  any  more  open  and  general  mode  of  ap- 
pointment. 

248.  The  same  considerations  recommend  the  pe- 
culiar tenure  by  which  Judicial  magistrates  hold  their 
offices ;  which  is,  in  effect,  for  life,  if  not  sooner  re- 
moved on  impeachment  and  conviction  for  official 
delinquency  ;  and  it  is  esteemed  one  of  the  most  va- 


76  JUDICIAL  DEPARTMENT.  PART  I. 

luable  of  modern  improvements  in  the  practice  of 
Government. 

249.  The  Judges,  both  of  the  Supreme  Court,  and 
of  the  inferior  Courts  of  the  United  States,  accord- 
ingly hold  their  offices,  during  good  behaviour  ;  which 
is  deemed  sufficient  as  a  defence  against  the  encroach- 
ments of  the  Legislative  and  Executive  Powers,  and 
the  best  expedient  that  can  be  devised  to  secure  a 
steady,  upright,  and  impartial  administration  of  jus- 
tice, 

250.  The  Judiciary  department,  from  the  nature 
of  its  functions,  must  always  be  the  weakest  of  the 
three  great  departments  of  power  ;  and  although  in- 
dividual oppression   may  sometimes  proceed   from 
Courts  of  justice,  yet  the  liberties  of  the  People  can 
never  be  endangered,  so  long  as  the  Judicial  Power 
remains  distinct  from  both  the  Legislative,  and  the  Ex- 
ecutive departments  ;   and  nothing  can  contribute  so 
much  to  the  firmness  and  independence  of  the  Judi- 
ciary, as  permanency  in  office. 

251.  In  addition  to  the  tenure  by  which  the  Judges 
hold  their  offices,  the  permanent  provision  for  their 
support  is  calculated  to  secure  their  independence. 
The    Constitution    accordingly   declares,   that   they 
"  shall,  at  stated  times,   receive  for  their  services  a 
compensation,  which  shall  not  be  diminished  during 
their  continuance  in  office." 

252.  This  provision  is  considered  an  improvement 
on  all  former  Constitutions ;  and   tends  to  secure  a 
succession  of  learned  men  as  Judges,  who,  in  conse- 
quence of  a  certain   undiminished  support,  are  in- 
duced to  relinquish  the  lucrative  pursuit  of  their  pro- 
fessional practice,  for  the  duties  of  an  important  and 
honourable  station  in  the  Government, 


CHAP.  HI.        OBJECTS  OF  ITS  JURISDICTION.  77 

253.  The  perfect  independence  of  the  Judges  is 
peculiarly  requisite  in  a  Constitution,  containing,  like 
that  of  the  United  States,  certain   specified  restric- 
tions upon  the  Legislative  authority,  both  of  the  ge- 
neral and   State  Governments ;  which  can  only  be 
preserved  in  practice  through  the  instrumentality  of 
the  Courts. 

254.  But  whilst  the  Constitution  secures  the  inde- 
pendence of  the  Judges,  it  renders  them  amenable 
for  any  corrupt  violation  of  their  trust ;  and,  on  im- 
peachment  and  conviction,  they  may  be  removed 
from  office,  and  disqualified  for  the  future  from  hold- 
ing any  office  whatever  under  the  Government  of  the 
United  States. 

255.  The  Judicial  power  being  established  on  prin- 
ciples essential  to  maintain  its  independence,  and  to 
secure  a  vigorous  administration  of  the    Law,  the 
Constitution  next  designates, 

II.  The  objects  of  its  jurisdiction. 

256.  The  Judicial  power  of  the  United  States  ex- 
tends, 

1.  To  all  cases  arising  under  the    Constitution; 

because  the  meaning,  construction,  and 
operation  of  a  compact,  ought  always  to  be 
ascertained  by  an  authority  derived  from  all 
the  parties,  and  not  by  an  authority  derived 
from  any  one  of  them. 

2.  To  all  cases  arising  under  the   Laws  of  the 

United  States  ;  because,  as  such  Laws  con- 
stitutionally made,  are  obligatory  on  each 
State,  the  measure  of  obligation  and  obe- 
dience ought  not  to  be  decided  and  fixed  by 
the  party  from  whom  they  are  due,  but  by 
a  tribunal  deriving  authority  from  both 
parties. 


T8  JUDICIAL  DEPARTMENT.  PART  I, 

3.  To  all  cases  arising  under  Treaties  made  by 

the  authority  of  the  Union;  because,  as  Trea- 
ties are  compactsmade  by,  and  obligatory  on, 
the  whole  nation,  their  operation  ought  not 
to  be  regulated  or  affected  by  the  local 
Laws  or  Courts  of  a  part  of  the  nation, 

4.  To  all  cases  affecting  Ambassadors,  other  pub- 

lic Ministers,  and  Consuls  ;  because,  as  these 
are  officers  of  foreign  nations,  whom  this 
nation  is  bound  to  protect,  and  treat  accord- 
to  the  Law  of  Nations,  cases  affecting  them 
ought  only  to  be  cognizable  by  national 
authority. 

5.  To  all  cases  of  Admiralty  and  Maritime  juris- 

diction ;  because,  as  the  sea  is  the  joint  pro- 
perty of  all  Nations,  whose  rights  and  privi- 
leges relative  to  it,  are  regulated  by  the 
Law  of  Nations  and  Treaties,  such  cases  ne- 
cessarily belong  to  national  jurisdiction. 

6.  To  all   controversies,   to  which  the    United 

States  shall  be  a  party  ;  because,  in  cases  in 
which  the  whole  People  are  interested,  it 
would  not  be  equal  or  wise,  to  permit  any 
one  State  to  decide  and  measure  out  the 
justice  due  to  others. 

7.  To  controversies  between  two  or  more  States  ; 

because  domestic  tranquillity  requires  that 
the  contentions  of  States  should  be  peace- 
ably terminated  by  a  common  judicatory ; 
and  justice  ought  not  to  depend  on  the  will 
of  either  of  the  litigants. 

8.  To  controversies  between  a  State  when  plain- 

tiff', and  citizens  of  another  State  ;  because, 
in  such  a  case,  it  is  better  that  a  State 
should  prosecute  its  demands  in  a  national 
court,  than  in  its  own  courts,  or  in  the 
courts  of  the  State  to  which  those  citizens 
belong ;  the  danger  of  irritations  arising 


CHAP.  IH.         OBJECTS  OF  ITS  JURISDICTION.  79 

from  apprehensions  or  suspicions  of  partial- 
ity being  thus  avoided. 

9.  To  controversies  between  citizens  of  different 

States  ;  because  the  immediate  fellow-citi- 
zens of  neither  of  the  parties  should  be  the 
sole  judges  in  such  cases ;  and  the  free  and 
equal  citizens  of  the  General  Government 
should  have  free  and  equal  justice  in  tribu- 
nals common  to  them  all. 

10.  To  controversies   between    citizens  of  the 

same  State,  claiming  lands  under  grants  of 
different  States  ;  because,  as  the  rights  of  the 
two  States  to  grant  the  land  are  drawn  in 
question,  neither  of  them  ought  to  decide 
the  controversy. 

11.  To  controversies  between  a  State  when  plain- 

tiff, or  between  the  citizens  thereof,  and  fo- 
reign States,  Citizens,  or  Subjects  ;  because, 
as  every  nation  is  responsible  for  the  con- 
duct of  its  citizens  towards  other  nations, 
all  questions  touching  the  justice  due  to  fo- 
reign States  or  People,  should  be  ascertain- 
ed by,  and  depend  on,  national  authority. 

257.  The  propriety  of  vesting  these  powers  in  the 
Judiciary  department  of  the  United  States,  seems  to 
result,  as  a  necessary  consequence,  from  their  union 
as  one  nation  ;  and  the  exercise  of  jurisdistion  in  all 
these  cases,  by  the  national  tribunals,  may  be  consi- 
dered requisite  to  the  existence  of  the  national  Go- 
vernment. 

258.  By  "  cases"  in  this  article  of  the  Constitution, 
are  understood  criminal,  as  well  as  civil  cases ;  and 
the  fitness  of  extending  the  Judicial  power  to  all  cases 
of  both  descriptions,  arising  under  the  Constitution,  in 
contradistinction  to  those  arising  under  Laws  passed 
in  virtue  of  its  authority,  depends  on  the  obvious 


80  JUDICIAL  DEPARTMENT.  PARTI. 

necessity  of  giving  efficacy  to  those  constitutional 
provisions  which  neither  require  nor  admit  of  an  Act 
of  the  national  Legislature  to  sanction  and  enforce 
them. 

259.  The  individual  States  are  prohibited  by  the 
Federnl  Constitution,  from  the  performance  of  certain 
acts,  some  of  which  are  incompatible  with  the  inte- 
rests and  objects  of  the  Union,  and  others  with  the 
principles  of  good  Government ;  but  such  prohibi- 
tions would  be  ineffectual  without  some  power  in  the 
General  Government,  to  restrain  or  correct  their  vio- 
lation. 

260.  From  the  nature  of  the  case,  this  power  must 
have  been  either  the  authority  actually  vested  in  the 
national  Courts,  to  overrule  such  Laws  of  the  several 
States,  as  contravene  the  Federal  Constitution ;  or 
instead  of  it,  a  direct  negative  upon  the  Laws  must 
have  been  vested  in  the  Executive  department  of  the 
national  Government. 

261.  The  latter  expedient  was  indeed  proposed  as 
a  substitute  for  that  which  was  adopted  ;  and  there  is 
no  other  alternative  that  can  be  devised,  without  in- 
volving a  power  in  any  one  State  to  suspend  or  sub- 
vert, within  its  limits,  the  acts  and  operations  of  every 
department  of  the  General  Government,  though  every 
other  member  of  the  Union  may  admit  their  validity. 

262.  That  the  jurisdiction  of  the  Federal  Courts 
should  extend  to  all  cases,  whether  civil  or  criminal, 
arising  under  Laws  passed  in  virtue  of  the  Federal 
Constitution,  is  evident  from  the  principle  already 
stated,  "  that  the  Judicial  power  in  every  Govern- 
ment must  be  co-extensive  with  the  power  of  legisla- 
tion." 

263.  In  a  Government  formed  from  the  union  of 


CHAP.  III.  POWER  OVER  LAWS.  81 

the  People  of  so  many  separate  and  independent 
States,  as  well  as  of  those  States  themselves,  into 
one  nation,  organized  under  a  written  compact  of 
government,  the  necessity  of  uniformity  in  the  inter- 
pretation of  the  national  Laws,  is  of  itself  sufficient 
to  render  this  provision  indispensable. 

264.  The  extension  of  the  Judicial  power  "  to  cases 
arising  under  Treaties,  made  under  the  authority  of 
the  United  States,11  was  equally  necessary  and  pro- 
per ;  as  without  this  jurisdiction  in  the  Courts  of  the 
Union,  there  would  be  perpetual  danger  of  collision, 
and  even  of  war,  with  foreign  powers,  and  an  utter 
incapacity  on  the  part  of  the  Government  to  fulfil 
these  national  contracts. 

265.  As  the  Constitution,  and  the  Laws  of  the 
United  States  made  in  pursuance  of  it,  and  all  Trea- 
ties made  under  the  authority  of  the  Union,  are  de- 
clared tO  be  "  THE  SUPREME  LAW  OF  THE  LAND  ;"    and 

the  Judges  in  every  State  are  bound  thereby,  "  any 
thing  in  the  Constitution  or  Laws  of  any  State  to  the 
contrary  notwithstanding^ — as  every  Act  of  Con- 
gress, or  of  the  State  Legislatures,  and  every  part  of 
the  Constitution  of  any  State  which  is  repugnant 
to  the  Federal  Constitution,  is  null  and  void, — and 
as  the  Judicial  Power  of  the  Union  extends  "  to 
all  cases  in  law  or  equity,  arising  under  the  Constitu- 
tion, Laws,  and  Treaties  of  the  United  States,"  it 
necessarily  belongs  to  that  Power,  whenever  a  case 
judicially  arises,  to  determine  what  is  the  Supreme 
Law  of  the  land  ;  and  the  determination  of  the  Su- 
preme Court  of  the  United  States  must  be  final  and 
conclusive,  because  the  Constitution  gives  to  that  tri- 
bunal power  to  decide  in  every  such  case,  and  gives 
no  appeal  from  its  decision. 

266.  The  right  of  Courts  of  Justice  to  pronounce 


82  JUDICIAL  DEPARTMENT.  PART  1. 

Legislative  acts  void,  on  the  ground  of  their  uncon- 
stitutionally, has  sometimes  been  doubted  or  denied, 
either  from  a  misconception  of  the  principle  on  which 
it  rests,  or  from  an  apprehension  that  the  doctrine 
would  establish  a  superiority  of  the  Judicial,  over  the 
Legislative  Power. 

267.  But  no  position  is  founded  on  clearer  princi- 
ples, than  that  every  act  of  delegated  authority,  con- 
trary to  the  tenor  of  the  commission  under  which  it 
is  exercised,  must  be  void  ;  and  no  Legislative  act 
contrary  to  the  Constitution,  which  is  the  commis- 
sion from  which  every  department  of  the  Govern- 
ment derives  its  authority,  can  therefore  be  valid. 

268.  Without  an  express  provision  to  that  effect, 
it  is  not  to  be  presumed  that  the  Constitution  intend- 
ed to  enable  the  representatives  of  the  People,  in  the 
Legislature,  to  substitute  their  will  in  the  place  of 
the  will  of  their  constituents ;  and  to  render  a  con- 
struction by  the  Legislature  of  their  own  powers  con- 
clusive upon  the  other  departments. 

269.  It  is  more  reasonable  to  conclude,  that  the 
Courts  of  Justice  were  intended,  not  only  to  repre- 
sent the  sovereign  authority  of  the  People  in  a  sepa- 
rate and  co-ordinate  department ;  but  were  designed 
in  that  capacity,  to  act  as  an  intermediate  body  be- 
tween the   People   and   the   Legislature,   in   order, 
amongst  other  things,  to  keep  the  latter  within  the 
limits  assigned  to  its  authority. 

270.  The  interpretation  of  the  Laws  is  the  pecu- 
liar province  of  Courts  of  Justice  ;  and  as  the  Consti- 
tution is  in  fact,  a  fundamental  Law,  and  the  Courts 
are  bound  to  regard  it  as  such,  it  is  as  much  their  duty 
to  ascertain  its  meaning,  as  to  ascertain  the  meaning 
of  any  act  proceeding  from  the  Legislative  body. 


CHAP.  IB.  POWER  OVER  LAWS.  83 

271.  If  in  any  case  there  should  be  found  an  irre- 
concileable  variance  between  a  Law  and  the  Consti- 
tution, that  which  has  the  superior  obligation  and  va- 
lidity ought  of  course  to  be  preferred ;  the  Constitu- 
tion should  prevail  over  the  statute,  and  the  intention 
of  the  People  themselves  be  carried  into  effect,  in- 
stead of  the  intention  of  their  agents. 

272.  This  conclusion  by  no  means  supposes  a  supe- 
riority of  the  Judicial,  over  the  Legislative  Power  : 
it  merely  supposes  that  the  People  are  superior  to 
both  ;  and  where  the  will  of  the  Legislature  declared 
in  the  Law,  stands  opposed  to  the  will  of  the  People 
declared  in  the  Constitution,  the  Judges  are  to  be  go- 
verned by  the  latter  rather  than  by  the  former ;  and 
Courts  are  bound  to  regulate  their  decisions  by  that 
fundamental  Law  over  which  the  Legislature  has  no 
control,  rather  than  by  those  which  it  may  at  any  time 
alter  or  repeal,  and  which  derive  their  validity  and 
effect  from  the  Constitution. 

273.  There   is  no  weight   in  the  objection,  that 
Courts  of  Justice,  on  the  pretence  of  a  repugnancy 
between  a  Law  and  the  Constitution,  may  substitute 
their  own  pleasure  in  the  place  of  the  constitutional 
intentions  of  the  Legislature  ;  because  this  might  as 
well  happen  in  the  case  of  two  contradictory  statutes, 
or  in  every  adjudication  upon  any  single  Legislative 
Act. 

274.  The  Courts  are  bound  to  declare  the  meaning 
of  the  Law  ;  and  if  they  should  be  disposed  to  exer- 
cise will,  instead  of  judgment,  the  consequence  in  all 
cases  equally,  would  be  the  substitution  of  their  own 
pleasure,  to  that  of  the  Legislature  ;  and  therefore, 
if  the  objection  proved  any  thing,  it  would  prove  that 
there  ought  to  be  no  Courts  or  Judges  distinct  from 
the  Legislative  body. 


84  JUDICIAL  DEPARTMENT.  PART  1. 

275.  But  the  separation  of  the  Judicial  from  the 
Legislative  Power,  was  designed  not  only  to  create 
a  distinct  and  independent  body  to  expound  and  ex- 
ecute the  Law ;  but  to  create  a  bulwark  to  protect  a 
Constitution  conferring  limited  powers,  from  Legisla- 
tive encroachments  and  Executive  usurpation  ;  whilst 
this  restraining  power  was  itself  confined  within  its 
proper  limits,  by  corresponding  checks,  in  the  hands 
of  the  other  departments,  or  arising  from  its  own 
constitution. 

276.  A  further  object  of  the  separation  of  the  Ju- 
dicial Power  from  the  other  departments  in  the  Con- 
stitution of  the  United  States,  and  of  the  precautions 
for  maintaining  its  independence  from  their  control, 
was  to  afford  security  to  the  General  Government,  in 
the  exercise  of  its  limited  powers,  against  the  inroads 
and  influence  of  the  several  States. 

277.  All  the  reasons  that  support  the  right  and 
duty  of  the  Courts,  in  the  ordinary  exercise  of  their 
power,  to  declare  void  those  Acts  of  Congess  which 
in  their  judgment,  are  repugnant  to  the  Constitution, 
apply  with  equal  force  to  establish  a  similar  control 
and  authority  in  the  Judiciary  of  the  Union,  over  the 
acts  and  proceedings  of  the  State  Governments. 

278.  The  People  of  the  several  States,  by  their 
adoption  of  the  Constitution  of  the  United  States,  in 
many  instances  superseded  and  modified   in  effect 
their  State  Constitutions,  which  the  People  of  each 
State  respectively  alone  could  alter ;  and  in  those 
instances  they  were  competent  to  do  so,  and  to  ac- 
knowledge and  declare,  not  only  the  Federal  Consti- 
tution itself,  but  the  Laws  and  Treaties  made  in  pur- 
suance of  its  authority,  to  be  the  Supreme  Law  of  the 
land,  and   of    paramount   obligation  to  either  the 
Constitution  or  the  Laws  of  any  of  the  States. 


CHAP.  III.         OBJECTS  OP  ITS  JURISDICTION.  85 

279.  By  declaring  that  the  Judicial  Power  of  the 
United  States  should  extend  to  all  cases  arising  under 
the  Constitution,  the  People  vested  in  that  department 
of  the  Government  authority  to  determine  the  con- 
struction of  that  instrument,  in  every  case  in  which 
such  a  question  should  arise  judicially,  whether  direct- 
ly between  the  parties  to  the  suit,  or  collaterally  be- 
tween the  parties  to  the  national  compact. 

280.  This  authority  of  the  Judiciary  of  the  Union, 
necessarily  results  from  the  operation  of  the  Laws  of 
the  United  States  upon  the  individual  citizens  of  the 
several  States  ;  and  if  this  distinct,  independent,  and 
appropriate  department,  were  not  expressly  created 
as  an  intermediate  body  between  the  National  and 
State  Governments,  it  is,  at  all  events,  that  in  which, 
from  its  nature  and  constitution,  this  high  and  indis- 
pensable power    necessarily  resides,  and  could  be 
most  safely  deposited. 

281.  But  the  Judiciary  of  the  United  States  has 
no  authority  to  declare  void  acts  of  3  State  Legisla- 
ture, on  the  ground  of  their  repugnancy  to  the  State 
Constitution,  unless  in  administering  the  local  law  of 
the  State ;  in  which  case  the  Courts  of  the  United 
States  act  exactly  as  the  State  tribunals  are  bound  to 
act. 

28'2.  The  propriety  of  extending  the  Judicial  Pow- 
er of  the  Union  "  to  all  cases  affecting  Ambassadors, 
other  public  Ministers,  and  Consuls,"  will  appear  from 
the  consideration,  that  all  diplomatic  officers,  like  the 
two  former  descriptions  of  these  public  agents,  are 
the  immediate  representatives  of  their  sovereigns, 
and,  as  such,  owe  no  subjection  to  any  Laws  but  those 
of  their  own  country  and  the  Law  of  Nations  ;  and 
that  the  acts  of  the  latter  description  of  officers  are  not 
in  all  cases  subject  to  the  private  law  of  the  country  in 
which  they  are  appointed  to  reside  ;  and  where  they 
H 


86  JUDICIAL  DEPARTMENT.  PART  I. 

are  liable  to  its  jurisdiction,  the  reasons  applicable  to 
all  foreigners  render  it  proper  that  they  should  be  ame* 
nable  only  to  the  National  tribunals. 

283.  Public  ministers,  in  order  to  perform  their  duty 
to  their  own  sovereign,  should  be  independent  of  any 
other  authority  ;  their  powers,  duties,  and  privileges, 
are  therefore  determined,  not  by  any  municipal  regu- 
lations or  enactments,  but  by  the  Law  of  Nations, 
which  is  equally  obligatory  upon  all  sovereigns  ;  and 
every  question  in  which  their  rights  or  the  rights  of 
Consuls  are  involved,  is  so  intimately  connected  with 
the  peace  of  the  nation,  that  it  would  be  unsafe  to 
submit  them  to  any  other  than  the  national  judica^ 
ture. 

284.  The  clause  extending  the  Judicial  Power  "to 
all  cases  of  Admiralty  and  Maritime  Jurisdiction,"   is 
supported  by  the  same  considerations  relative  to  the 
public  peace,  as  respect  public  Ministers  and  Consuls ; 
as  Maritime  causes  generally  depend  on  the  Law  of 
Nations,  and  commonly  affect  the  rights  of  aliens. 

285.  Unless  jurisdiction  had  been  given  to  the  na- 
tional Courts  of  "  cases  to  which  the  United  States 
are  a  party,"  all  the  rights,  powers,  contracts,  and 
privileges,  which  they  possess  in  their  sovereign  ca- 
pacity, would  be  at  the  mercy  and  control  of  the  seve- 
ral States  ;  and  it  would,  besides,  be  a  novelty  in  ju- 
risprudence to  prevent  a  sovereign  power  from  suing 
in  its  own  Courts^ 

286.  But  the  terms  in  which  this  jurisdiction  is 
conferred,  does  not  vest  in  the  Federal  Courts  juris- 
diction in  all  controversies  to  which  the  United  States 
shall  be  a  party — so  as  to  justify  a  suit  to  be  brought 
against  the  United  States  without  the  consent  of  Con- 
gress ;  and  according  to  ap  established  maxim  of 


CHAP.  111.         OBJECTS  OF  ITS  JURISDICTION. 

public  Law,  it  is  inherent  in  the  nature  of  sovereignty 
not  to  be  amenable  to  the  suit  of  a  private  person 
without  its  own  consent. 

287.  The  extension  ^of  the  Judicial  Power  of  the 
United  States  "  to  controversies  between  two  or  more 
States,"  is  essential  to  the  peace  and  stability  of  the 
Union  ; — which,  before  the  adoption  of  the  Constitu- 
tion, had  been  frequently  endangered,  and  sometimes 
interrupted  by   territorial  disputes,   and   interfering 
claims  of  boundary  between  the  States  :  and  it  may 
justly  be  presumed,  that  under  the  National  Govern- 
ment, the  decision  of  all  such  controversies  will  be 
impartial. 

288.  As  "  controversies  between  a  State  and  the 
citizens  of  another  State,"  might  excite  animosities 
amongst  the  members  of  the  Union,  the  Federal  Courts 
are  properly  designated  as  the  tribunals  to  decide 
them  ;  and  by  the  first  Judiciary  act,  Congress  con- 
ferred jurisdiction  on  the  Courts  of  the  United  States, 
in  suits  prosecuted  by  a  citizen  of  another  State  of 
the  Union,  or  by  citizens  or  subjects  of  foreign  States. 

289.  The  individual  States,  however,  wore  not 
willing  to  submit  to  be  arraigned  as  dependants,  be- 
fore the  Federal  Courts,  at  the  instance  of  private 
persons ;    and  it  was  subsequently  declared  by  an 
amendment  of  the  Constitution,   that  "  the  Judicial 
Power  should  not  be  construed  to  extend  to  any  suit 
of  Law  or  Equity  commenced  or  prosecuted  against 
any  one  of  the  United  States,  by  citizens  of  another 
State,  or  foreign  citizens  or  subjects." 

290.  Although  the  necessity  of  vesting  jurisdiction 
in  the  Federal  Courts  in  "  controversies  between  citi- 
zens of  different  States,"  may  not  stand  upon  ground 
equally  as  strong  as  some  of  the  preceding  instances ; 


88  JUDICIAL  DEPARTMENT.  PART  1. 

it  may,  nevertheless,  be  vindicated  by  high  motives 
of  public  justice  and  policy ;  and  there  are  many- 
cases  in  which  such  a  power  may  be  highly  expedient,, 
if  not  indispensable,  to  carry  into  effect  some  of  the 
privileges  and  immunities  conferred  by  the  Union ; 
and  some  of  the  prohibitions  upon  the  States. 

291.  The  clause  relative  to  "  controversies  between 
citizens  of  the  same  State  claiming  lands  under  grants 
of  different  States,"  is  the  only  instance  in  which  the 
Constitution  directly  provides  for  the  cognizance  of 
disputes  between  citizens  of  the  same  State  in  the 
Federal  Courts ;  but  it  is  not  the  only  one  in  which 
it  contemplates  their  being  incidentally  and  ultimately 
subject  to  the  national  jurisdiction  ;  as  all  the  citizens 
of  the  United  States  are  equally  entitled  to  the  benefit 
of  that  jurisdiction,  in  all  cases  arising  under  the 
Constitution,  Laws,  and  Treaties  of  the  Union. 

292.  The  direct  jurisdiction,  in  this  particular  in- 
stance, is  founded  on  the  reasonableness  and  propriety 
of  giving  the  National  Courts  cognizance  of  all  cases 
in  which  the  State  tribunals  cannot  be  supposed  to 
be  impartial ;  and  it  attaches,  not  only  to  grants  made 
by  different  States  which  were  never  united,  but  also 
to  grants  made   by  different  States  which  were  ori- 
ginally comprehended  within  the  same  jurisdiction 
and  government,  if  made  after  the  separation,  even 
though  the  origin  of  the  title  may  be  traced  back  to 
an  antecedent  period. 

293.  The  jurisdiction  of  "  controversies  between 
a  State,  or  the  citizens  thereof,  and  foreign  States, 
citizens,  or  subjects,"  is  founded  on  the  responsibility 
of  the  Union  for  the  conduct  of  its  members  ;  and  on 
the   necessity  that   this   national    responsibility  for 
injury,  should  be  accompanied  by  the  faculty  of  pre- 
venting iU 


CHAP.  IH.  COURT  OF  IMPEACHMENTS.  89 

294.  As  the  perversion  or  denial  of  justice  to  fo- 
reigners, is  with  reason  classed   amongst  the  just 
causes  of  war,  and  as  a  great  proportion  of  the  con- 
troversies to  which  they  are  parties,  involve  national 
questions,  it  is  not  less  essential  to  the  preservation 
of  the  public  faith,  than  of  the  public  tranquillity,  that 
all  causes  in  which  aliens  are  concerned  should  be 
referred  to  the  National  tribunals. 

295.  In  order  to  ascertain, 

III.  The  manner  in  which  the  jurisdiction  vested 
in  the  Judicial  Powtr  of  the  Union  has  been 
diffused  and  distributed, 

either  by  the  Constitution,  or  by  the  Laws  passed  by 
Congress  for  giving  it  effect,  it  will  be  necessary  to 
review  the  powers  vested  in  the  several  Courts  of 
the  United  States,  established  by  the  Constitution  OF 
created  by  law, 

296.  The  first  of  these  is  a  high  and  peculiar  juris- 
diction, not  otherwise  mentioned  in  the  Constitution 
than  by  way  of  exception  to  the  ordinary  modes  of 
trial ;  and  which  is  denominated  "  the  Court  for  the 
trial  of  impeachments  f — a  tribunal  which  seems  ra- 
ther, to  have  been  necessarily  called  into  existence 
by  the  mere  formation  of  the  Constitution,  than  to  be 
expressly  created  by  it. 

297.  Impeachment  is  introduced  into  the  Consti- 
tution as  a  known  term  of  definite  signification,  to 
ascertain  which  we  must  have  recourse  to  the  En- 
glish Common  Law,  from  which  it  is  derived. 

298.  The  practice  of  impeachments  arose  from  the 
experience,  that  persons  entrusted  with  the  adminis- 
tration of  public  affairs,  would  often  infringe  upon 
the  rights  of  the  People,  and  commit  such  crimes  as 


90  JUDICIAL  DEPARTMENT,  PART  1. 

the  ordinary  Courts  and  Magistrates  did  not  dare,  or 
had  no  power,  to  punish. 

299.  Of  such  offences,  the  Representatives  of  the 
People  in  the  Legislature,  would  not  be  proper  judges, 
because  they  and  their  constituents  are  in  such  cases 
the  parties  injured ;  and  are  therefore  properly  the 
accusers. 

300.  As  the  ordinary  Courts  of  Justice  would  na- 
turally be  swayed  by  the  authority  of  such  powerful 
accusers,  the  charge  is  brought  for  trial  before  the 
other  branch  of  the  Legislature;  the   members  of 
which  are  supposed  not  to  have  the  same  interests 
and  passions  with  the  popular  Assembly. 

301.  In  accordance  with  this  theory,  the  Constitu- 
tion of  the  United  States  declares  that  "  the  House 
of  Representatives  shall  have  the  sole  power  of  im- 
peachment," and  that  "  the  Senate  shall  have  the  sole 
power  to  try  all  impeachments." 

302.  The  power  of  originating  the  inquiry,  and  of 
preferring  and  conducting  the  prosecution,  is  thus 
lodged  with  that  branch  of  the  Legislature  which  im- 
mediately represents  the  People;  and  the  reasons 
which  establish  the  propriety  of  this  arrangement, 
indicate  the  necessity  of  admitting  the  other  branch 
of  the  Legislative  body,  to  its  appropriate  share  in  the 
investigation. 

303.  As  the  members  of  the  Senate  are  by  one 
degree  further  removed  from  the  People,  and  are 
elected  upon  a  different  principle  of  representation  ; 
as  they  are  chosen  for  a  longer  period,  are  more  in- 
dependent of  popular  favour,  and  are  presumed  to  be 
more  secure  from  party  influence ;  they  are  more  fit 
to  sit  as  Judges,  than  the  members  of  the  House  of 
Representatives. 


CHAP.  III.  COURT  OF  IMPEACHMENTS.  91 

304.  Besides,  as  the  Senators  are  chosen  with  the 
knowledge  that  they  may,  whilst  in  office,  be  called 
upon  to  exercise  this  high  jurisdiction,  they  bring  with 
them  the  confidence  of  their  constituents  as  to  their 
qualifications  for  this  special  duty ;  and  an  implied 
compact  on  their  own  parts,  that  it  will  be  faithfully 
and  honestly  discharged. 

305.  The  objects  of  this  jurisdiction  are  all  acts 
which  involve,  or  proceed  from,  the  abuse  or  viola- 
tion of  a  public  trust,  and  are  with  propriety  denomi- 
nated political  offences,  or  "  high  crimes  and  misde- 
meanors," as  their  effects  and  consequences  are  im- 
mediately injurious  to  the  body  politic  itself. 

306.  The  causes  of  impeachment  have  reference 
only  to  public  character  and  official  duty,  though  the 
terms  of  the  Constitution  comprehend  "  treason,"  as 
well  as  "  bribery,  or  other  high  crimes  and  misde- 
meanors."    But  the  treason  contemplated,  is  treason 
against  the  Government  of  the  United  States. 

307.  With  the  exception  of  treason,  offences  of 
every  description,  not  immediately  connected  with 
the  exercise  of  a  public  trust,  are  left  to  the  ordinary 
course  of  Judicial  proceedings  ;  and  neither  branch 
of  the  Legislature  can  regularly  inquire  into  them, 
except  in  relation  to  their  own  members,  and  with  the 
view  of  expelling  them  if  guilty.     But  the  ordinary 
tribunals  are  not  precluded,  either  before,  or  after  an 
impeachment,  from  taking  cognizance  of  public  and 
official  delinquency. 

308.  The  only  subjects,  therefore,  or  persons  liable 
to  impeachment,  are  those  who  hold  or  have  held  a 
public  office  under  the  United  States ;  and  all  Execu- 
tive and  Judicial  officers  of  the  United  States,  of 
every  rank  and  description,  are  included. 


92  JUDICIAL  DEPARTMENT'.  ^AfcT  f, 

309.  A  construction  has  been  given  to  the  Consti- 
tution by  the  Court  of  Impeachments,  by  which  a 
member  of  the  Senate  was  held  not  to  be  liable  to  an 
impeachment ;   the  term  "  officers,"  as  used  in  the 
Constitution,  having  been  adjudged  not  to  include 
Senators  ;  and  upon 'the  same  principle,  members  of 
the  House  of  Representatives  must  also  be  exempt 
from  impeachment^ 

310.  The  Articles  of  Impeachment,  as  the  document 
containing  the  formal  specification  of  the  charge  is 
technically  called,  need  not  be  drawn  up  with  the 
precision  required  in  ordinary  Indictments,  or  accusa- 
tions at  Law ;  but  they  must  be  distinct  and  inteHi" 
gible,  as  no  one  is  bound  to  answer  to  a  charge  that 
eannot  easily  be  understood. 

311.  As  Articles  of  Impeachment  can  be  exhibited 
only  by  the  House  of  Representatives,  if  the  Senate, 
in  the  exercise  of  its  Executive  functions  or  other-' 
wise,  become  apprized  of  the  commission  of  unlawful 
acts  by  a  public  officer,  requiring,  in  its  opinion,  a 
public  investigation,  it  is  its  duty  to  communicate  the 
evidence  it  may  possess  to  the  House  of  Representa-- 
tives, 

312.  But  the  bare  communication  of  the  facts 
would  be  all  that  would  be  consistent  with  the  duty 
of  the  Senate  on  such  an  occasion.     It  should  care- 
fully avoid  recommending  or  suggesting  an  impeach- 
ment ;  and  the  same  course  should  be  pursued  by  the 
President  of  the  United  States,  under  similar  circum- 
stances. 

313.  No  definite  number  of  members  is  required 
to  constitute  a  Court ;  but,  as  it  is  in  "  the  Senate," 
that  the  power  of  trying  impeachments  is  vested,  the 
number  requisite  to  constitute  a  quorum  of  that  body 


CHAP.  in.  COURT  OF  IMPEACHMENTS.  93" 

(i.  e.  a  majority  of  all  the  Senators  appointed,)  must 
also  be  necessary  to  constitute  the  Court ;  and  must 
be  sufficient  for  that  purpose,  although  no  conviction 
can  take  place  without  the  concurrence  of  two-thirds 
of  the  members  present. 

314.  The  Vice  President  of  the  United  States,  be- 
ing President  of  the  Senate,  presides,  when  present, 
in  the  Court;   except  when  the   President  of  the 
United  States  is  tried,  on  which  occasion  the  Chief 
Justice  presides  ;  and  the  reason  which  forbids  the 
Vice  President  to  preside  in  such  a  case,  requires  that 
he  should  retire  wholly  from  the  Court. 

315.  The  Constitution  does  not  declare  that  the 
Vice  President  shall  be  restricted  on  the  trial  of  im- 
peachments, as  in  Legislative  proceedings,  to  a  cast- 
ing vote  ;  and  as  he  is  constituted  one  of  the  Judges 
of  the  Court,  by  being  appointed  to  preside  without 
any  restriction,  it  seems  to  follow  that  he  is  entitled 
to  vote  in  the  same  manner  as  the  other  Judges.    The 
same  reasoning  would  establish  a  similar  right  in  the 
Chief  Justice,  when  presiding  on  the  trial  of  the  Pre- 
sident. 

316.  The  same  general  rules  of  evidence  prevail 
on  the  trial  of  impeachments,  as  in  ordinary  trials  at 
Common  Law  ;  and  the  respondent  or  accused  party, 
is  entitled  to  the  benefit  of  counsel ;  but  it  is  not  ne- 
cessary that  he  should  be  personally  present,  as  the 
trial  may  proceed  in  his  absence,  if  he  have  had  due 
notice  to  appear* 

317.  When  sitting  as  a  Court  for  the  trial  of  im- 
peachments, the  members  are  put  under  oath  or  af- 
firmation.    Their  consultations,  as  well  on  collateral 
and  incidental  points,  as  on  the  main  question,  are 
conducted  in  private  ;  but  the  judgment  must  be  ren- 


94  JUDICIAL  DEPARTMENT.  PART  1. 

dered  in  public  ;  and  can  extend  no  further  than  to 
removal  from  office,  and  disqualification  to  hold  any 
office  of  trust  or  profit  under  the  United  States. 

318.  Although  the  party  impeached  may  be  found 
guilty  of  the   highest   political   crime,   viz.   treason 
against  the  United  States,  yet  his  life  is  not  thereby 
put  in  jeopardy  before  the  Court  for  the  trial  of  im- 
peachments ;  and  in  no  case  is  the  liberty  or  property 
of  a  person  convicted,  affected  by  the  judgment  of 
this  tribunal  ;   as  prosecution  and  punishment  await 
him  elsewhere,  according  to  the  usual  course  of  Law. 

319.  As  by  the  sentence  pronounced  on  conviction 
in  cases  of  impeachment,  an  appointment  made  by 
the  Executive  authority  is  superseded,  and  the  party 
is  rendered  incapable  of  re-appointment  to  any  office  ; 
the  President  is  disabled  from  granting  a  pardon,  and 
thus  restoring  the  competency  of  the  offender. 

320.  But  there  is  no  restriction  on  the  power  of 
pardoning  for  the  same  act,  in  case  of  a  conviction  in 
the  common  course  of  Law;  for  the  pardon  in  that 
case  extends  only  to  the  punishment  imposed  by  the 
ordinary  tribunals,  without  affecting  the  sentence  of 
the  Court  for  the  trial  of  impeachments. 

321.  The  distribution  of  the  Judicial  authority  of 
the  Union,  amongst  the  several  Courts  of  ordinary 
Judicature,  except  in  a  few  specified  cases,  is  devolved 
on  Congress ;   and  in  the  execution  of  that  power, 
Congress  is  not  bound  to  enlarge  the  jurisdiction  of 
the  respective  tribunals  to  every  subject,  or  to  vest  it 
in  every  form,  which  the  Constitution  might  warrant 
in  reference  to  each  of  them  in  particular. 

322.  The  whole  Judicial  Power,  in  some  form  or 
Other,  must  nevertheless,  in  all  cases  at  least  in  which* 


CHAP.  III.         SUPREME  COURT.  95 

it  is  exclusive  of  the  States,  be  at  all  times  duly  vested 
and  distributed  amongst  the  National  Courts  ;  and 
in  all  cases  where  the  Judicial  Power  of  the  United 
States  is  to  be  exercised,  it  is  for  Congress  alone  to 
prescribe  the  rules  of  proceeding,  to  direct  the  pro- 
cess, and  to  declare  its  nature  and  effect,  and  the 
mode  in  which  the  judgments  consequent  thereon  shall 
be  executed. 

323.  As  the  Judicial  Power  of  the  United  States 
extends  to  all  the  cases  enumerated  in  the  Constitu? 
tion,  it  may  be  extended  to  them  by  Congress  where 
not  restricted   by  the  Constitution,  in  any  form  in 
which  the  Judicial  Power  may  be  exercised — either 
in  the  shape  of  origittal,  or  appellate  jurisdiction,  or 
both  ;  for  there  is  nothing  in  the  nature  of  these  cases 
which  binds  to  the  exercise  of  the  one,  in  preference 
to  the  other. 

324.  In  order  to  ascertain  to  what  extent,  and  in 
what  manner  the  Federal  jurisdiction,  both  original 
and  appellate,  has  actually  been  disposed  of,  either  by 
the  Constitution  or  by  Law,  it  will  be  necessary  to 
examine  specifically  the  organization  and  powers  of 
the  several  Courts,  as  ordained  by  the  one,  or  esta- 
blished by  the  other. 

325.  The  Supreme  Court  of  the  United  States,  al- 
though created  by  the  Constitution,  received  its  pre- 
sent organization  from  the  Judiciary  Act  of  1789,  and 
the  several  Laws  subsequently  passed  by  Congress 
in  addition  to  that  Statute, 

326.  The  Constitution  merely  declares  that  there 
shall  be  a  Supreme  Court,  with  certain  original  and 
appellate  powers  ;  and  it  is  only  to  be  implied  from 
that  instrument,  that  the  Chief  Justice  of  the  United 
States  shall  preside  in  it,  with  an  indefinite  number  of 
Judges,  to  be  associated  with  him. 


JUDICIAL  DEPARTMENT.  PART  I. 

327.  But  the  Acts  of  Congress  declare  that  this 
Court  shall  consist  of  the  Chief  Justice  and  six  as- 
sociate Judges,  any  four  of  whom  constitute  a  quo- 
rum ;  and  they  also  direct,  that  it  shall  hold  one  term 
annually,  at  the  seat  of  the  national  Government, 
.commencing  on  the  first  Monday  in  January. 

328.  Although  the  presence  of  four  of  the  Judges 
is  required  for  the  general    business  of  the  Court ; 
yet  any  one  or  more  of  them  may  make  all  necessary 
orders  in  a  suit,  preparatory  to  the  hearing  or  trial ; 
and  it  is  made  the  special  duty  of  a  particular  asso- 
ciate Judge,  to  attend  at  Washington  annually,  on  the 
first  Monday  in  August,  for  that  purpose. 

329.  The  Constitution  vests  in  the  Supreme  Court, 
original  jurisdiction  in  all  cases  affecting  Ambassa- 
dors, other  public  Ministers,  and  Consuls  ;   and  in 
those  in  which  a  State  may  be  a  party ;  but  the  ju- 
risdiction conferred  in  relation  to  suits  and  proceed- 
ings against  foreign  Ambassadors  and  Ministers,  and 
their  domestics,  is  only  such  as  a  Court  of  Law  can 
exercise  consistently  with  the  Law  of  Nations. 

330.  In  all   the  other  cases  enumerated   in  the 
Constitution,  it  vests  in  the  Supreme  Court  "  appellate 
jurisdiction,  both  as  to  the  Law  and  the  fact,  with 
such  exceptions,  and  under  such  regulations,  as  Con- 
gress shall  make." 

331.  In  suits  and  proceedings  against  Ambassadors, 
or  other  public  Ministers,  or  their  domestics ;  and 
in  all  controversies  of  a  civil  nature,  where  a  State 
can  be  made  a  party,  except  in  suits  by  a  State 
against  one  or  more  of  its  citizens,  against  citizens  of 
other  States,  or  against  aliens,  the  original  jurisdiction 
of  the  Supreme  Court  is  rendered  exclusive  by  Con- 


CHAP,  III.          SUPREME  COURT.  97 

332.  In  suits  brought  by  Ambassadors,  or  other 
public  Ministers,  or  in  which  a  Consul  or  a  Vice 
Consul  is  a  party,  and  in  suits  by  a  State  against  one 
or  more  of  its  citizens,  against  citizens  of  other  States, 
or  against  aliens,  its  jurisdiction  remains  concurrent 
either  with  the  inferior  National  Courts,  or  with  the 
Courts  of  the  several  States. 

333.  It  has  been  made  a  question,  however,  whe- 
ther the  whole  original  jurisdiction  of  the  Supreme 
Court,  was  not  intended  to  be  exclusive,  both  of  the 
inferior  Courts  of  the  United  States,  and  of  the  State 
Courts.    But  if  any  portion  of  this  original  jurisdiction 
may,  in  the  discretion  of  Congress,  be  shared  with 
other  Courts,  it  cannot  be  enlarged. 

334.  Congress  can  neither  invest  the  Supreme 
Court  with  original  jurisdiction   in  those  cases   in 
which  the  Constitution  declares  that  its  jurisdiction 
shall  be  appellate,  nor  invest  it  with  appellate  juris- 
diction in  those  cases  in  which  the  Constitution  de- 
clares that  it  shall  be  original. 

335.  The  cases  in  which  a  State  is  a  party,  to 
which  the  original  jurisdiction  of  the  Supreme  Court 
extends,  either  exclusively  or  .concurrently,  must  be 
cases  in  which  a  State  is  either  nominally  or  substan- 
tially the  party  ;  and  it  is  not  sufficient  that  a  State 
may  be  consequentially  affected. 

336.  Although  the  Judicial  Power  of  the  Union 
extends  to  controversies  between  a  State  and  foreign 
States,  Citizens,  or  Subjects,   and   the  Constitution 
gives  to  the  Supreme  Court  original  jurisdiction  in  all 
such  cases;  yet  the  "  Indian  Tribes"  are  not  consi- 
dered "  foreign  States,"  within  the  meaning  of  the 
Constitution. 

337.  The  most  usual  modes  of  exercising  appellate 


98  JUDICIAL  DEPARTMENT.  FART  I. 

jurisdiction  are  by  Writ  of  Error,  which  is  a  Common 
Law  process  for  the  removal  of  a  suit  from  an  inferior 
Court,  but  which  removes  nothing  for  re-examination 
but  the  Law  of  the  case  ;  and  by  Appeal,  which  is 
a  proceeding  of  Civil  Law  origin,  and  removes  a 
cause  entirely,  and  subjects  the  facts,  as  well  as  the 
Law,  to  a  review  and  re-trialt 

338.  Writs  of  Error  are  applicable  only  to  suits  at 
Law  tried  by  a  Jury ;  whilst  Appeals  are  adapted  to 
cases  of  Equity  and  Admiralty  jurisdiction  ;  and  it  is 
declared,  by  an  amendment  to  the  Constitution,  that 
"  in  suits  at  Common  Law,  where  the  value  in  con- 
troversy shall  exceed  twenty  dollars,  the  right  of  trial 
by  Jury  shall  be  preserved  :  and  no  fact  tried  by  a 
Jury  shall  be  otherwise  re-examined  in  any  Court  of 
the  United  States,  than  according  to  the  rules  of  the 
Common  Law :"  which  is  a  prohibition  to  the  National 
Courts,  to  re-examine  facts  tried  by  a  Jury,  in  any 
other  manner. 

339.  Final  Judgments  and  decrees  in  Civil  actions, 
and  suits  in  Equity,  in  the  Circuit  Courts  of  the  United 
States,  whether  brought  there  by  original  process,  or 
removed  thither  either  from  the  State  Courts,  or  from 
the  District  Courts  of  the  United  States,  in  the  enu- 
merated cases  of  Federal  cognizance,  of  which  the 
Supreme  Court  has  not  the  exclusive  original  juris^ 
diction,  and  where  the  matter  in  dispute  exceeds  the 
sum  of  two  thousand  dollars,  may  be  re-examined,  and 
reversed  or  affirmed  in  the  Superior  Court. 

340.  Final  Judgments  and  decrees  of  the  Circuit 
Courts,  in  cases  of  Admiralty  and  Maritime  jurisdic- 
tion, and  in  prize  causes,  where  the  matter  in  dispute 
exceeds  the  same  amount,  may  be  reviewed  on  Appeal 
in  the  Supreme  Court ;  and  in  Admiralty  and  prize 
causes  new  evidence  is  admitted  on  Appeals,  conform. 


CHAP.  HI.  SUPREME  COURT.  99 

ably  with  the  general  doctrines  and  usages  of  Appel- 
late Courts  of  Admiralty. 

341.  A  final  Judgment  or  decree  of  the  highest 
Court  of  Law  or  Equity  in  a  State,  may  be  brought 
up,  on  the  allegation  of  error  in  point  of  Law,  to  the 
Supreme  Court  of  the  United  States,  in  the  following 
cases,  viz : 

1.  If  the  validity  of  a  Treaty,  of  an  Act  of  Con- 

gress, or  of  an  authority  exercised  under 
the  Government  of  the  United  States,  was 
drawn  in  question  in  the  State  Court,  and 
the  decision  was  against  that  validity. 

2.  If  the  validity  of  any  State  Law  or  authority, 

was  drawn  in  question  on  the  ground  of  its 
repugnancy  to  the  Constitution,  Treaties,  or 
Laws  of  the  United  States,  and  the  decision 
was  in  favour  of  its  validity. 

3.  If  the  construction  of  any  clause  of  the  Con- 

stitution, or  of  a  Treaty,  or  of  a  Statute  of 
the  United  States,  or  of  a  commission  held 
under  them,  was  drawn  in  question,  and 
the  decision  was  against  the  title,  right,  pri- 
vilege, or  exemption  specially  claimed  un- 
der the  authority  of  the  Union. 

342.  But  upon  Appeals  from  a  decision  of  a  State 
Court,  no  other  error  can  be  assigned  or  regarded  in 
the  Supreme  Court,  than  such  as  appears  on  the  face 
of  the  record,  and  immediately  respects  the  question 
of  the  validity  or  construction  of  the  Constitution, 
Treaty,  Statute,  commission,  or  authority  in  dispute. 

343.  In  case  of  a  reversal  of  the  Judgment  or  de- 
cree of  the  highest  State  Court,  the  cause  may  either 
be  remanded  to  that  Court,  or  the  Supreme  Court  of 
the  United  States  may,  if  the  cause  has  once  before 
been  remanded,  proceed  to  a  final  disposition  of  it, 
and  award  Execution  accordingly. 


100  JUDICIAL  DEPARTMENT.         PART  I. 

344.  If  the  highest  Court  in  a  State  reverse  the 
Judgment  of  a  subordinate  Court,  and  on  Appeal  the 
Judgment  of  the  highest  State  Court  be  in  its  turn 
reversed  in  the  Supreme  Court  of  the  United  States, 
the  latter  Judgment  so  reversed,  becomes  a  mere 
nullity,  and  the  mandate  for  Execution  may  issue  di- 
rectly from  the  Supreme  Court  of  the  United  States 
to  the  inferior  State  Court. 

345.  The  validity  of  th'is  proceeding  depends  on 
the  constitutionality  of  the  25th  section  of  the  Judi- 
ciary Act  of  1789,  which  provides  for  the  prosecution 
of  Appeals  from  decisions  of  the.  highest  State  Courts 
in  the  cases  enumerated  ;  which  provision  has  been 
declared  by  the  Supreme  Court  to  be  warranted  by 
the  Constitution* 

346.  The  grant  of  the  Judicial  Power  in  the  Con- 
stitution was  declared,  on  that  occasion,  to  be  abso- 
lute ;  and  it  was  held  to  be  imperative  upon  Congress 
to  provide  for  the  appellate  jurisdiction  of  the  Federal 
Courts,  in  all  cases  in  which  Judicial  Power  was  ex- 
clusively granted  by  the  Constitution,  and  not  already 
given,  by  way  of  original  jurisdiction,  to  the  Supreme 
Court. 

347.  The  Constitution  intended  that  the  Judicial 
Power,  either  in  an  original  or  appellate  form,  should 
extend  absolutely  to  all  cases  in  Law  or  Equity^ 
arising  under  the  Constitution  and  Laws  of  the  Unit- 
ed States,  and  the  Treaties  made  under  its  authority  ;. 
to  all  cases  affecting  Ambassadors,  other  public  Mi- 
nisters, and  Consuls  ;•  and  to  all  cases  of  Adfniralty 
and  Maritime  jurisdiction, — because  these  cases  were 
of  vital  importance  to  the  sovereignty  of  the  Union, 
entered  into  the  national  policy,  and  affected  national 
rights. 

348.  But  with  respect  to  the  other  cases  enumerat- 


CHAP.  III.  SUPREME  COURT.  101 

ed,  the  Constitution  seems  designedly  to  have  dropped 
the  word  "  a//,"  so  as  not  absolutely  to  extend  the 
jurisdiction  of  the  Federal  Judiciary  to  "all  contro- 
versies," but  merely  to  "  controversies,"  in  which  the 
United  States  are  a  party,  or  between  two  or  more 
States,  or  between  citizens  of  different  States,  &c. 
and  has  left  it  to  Congress  to  qualify  the  jurisdiction, 
whether  original  or  appellate,  in  such  manner  as  pub- 
lic policy  may  dictate. 

349.  Whatever  weight  is  due  to  this  distinction,  it 
is  manifest  that  the  Judicial  Power  is,  in  some  cases, 
unavoidably  exclusive  of  all  State  authority,  and  in 
all  others  enumerated  in  the  Constitution,  may  be 
made  so  at  the  election  of  Congress ;  and  the  Judi- 
ciary Act  accordingly  assumes  that,  in  all  the  cases  to 
which  the  Judicial  Power  of  the  United  States  ex- 
tends, Congress  may  rightfully  vest  exclusive  juris- 
diction in  the  national  Courts. 

350.  The  Criminal  and  the  Admiralty  jurisdiction, 
are  necessarily  exclusive  ;  and  it  is  only  in  those  cases 
where,  previously  to  the  Constitution,  the  State  tribunals 
possessed  jurisdiction  independently  of  national  autho- 
rity, that  they  can  now  exercise  a  concurrent  Jurisdic- 
tion. 

351.  The  exercise  of  appellate  jurisdiction  is  not 
limited  by  the  Constitution  to  the  Supreme  Court. 
Congress  may  create  a  succession  of  inferior  tribu- 
nals, in  each  of  which  it  may  vest  appellate,  as  well 
as  original,  jurisdiction.     But  in  all  cases  where  a 
concurrent  original  jurisdiction  is  vested  in  the  Su- 
preme Court  by  the  Constitution,  it  must  possess  an 
appellate  power  over  the  decisions  of  those  Courts 
upon  which  Congress  confer,  in  the  same  cases,  con- 
current jurisdiction,  whether  in  its  original  or  appellate 
form. 


102  JUDICIAL  DEPARTMENT.  PART   I 

352.  The  appellate  jurisdiction  of  the  Supreme 
Court  is  alone  declared  by  the  Constitution,  to  be 
subject  to  such  exceptions  and  regulations  as  Con- 
gress may  prescribe  ;  so  that,  in  cases  falling  within 
that  jurisdiction,  it  alone  remained  in  the  discretion 
of  Congress,  to  provide  for  the  exercise  of  the  Judi- 
cial Power  in  all  the  various  forms  of  Appeal. 

353.  The  appellate  Power  of  the  National  Judi- 
ciary is  not  limited  to  cases  pending  in  the  Courts  of 
the  United  States  ;  for  if  it  had  been  so  limited,  the 
jurisdiction  of  the  Federal  Courts  must  have  beer* 
exclusive  of  the  State  Courts,,  in  all  the  cases  enu- 
merated in  the  Constitution. 

354.  As  the  Judicial  Power  of  the  United  States 
extends  to  all  cases  arising  under  the  Constitution,. 
.Laws,  and  Treaties  of  the  Union,  and  to  all  cases  of 
Admiralty  and  Maritime  jurisdiction,  &c.  the  State 
Courts  cannot,  consistently  with  the  express  grant  of 
the  Constitution,  entertain  any  jurisdiction  without 
the  right  of  appeal ;  otherwise  the  appellate  jurisdic- 
tion of  the  Supreme  Court,  as  to  those  cases,  would 
be  defeated,  contrary  to  the  manifest  intent  of  the 
Constitution* 

355.  The  appellate  Power  of  the  Federal  Courts 
must,  therefore,  extend  to  the  State  Courts,  so  long 
as  the   latter  entertain,  any  concurrent  jurisdiction; 
over  any  of  the  cases  which  the  Constitution  has  de- 
clared to  be  within  the  Judicial  cognizance  of  the 
United  States., 

356.  The   Constitution  contemplated  that  sucfe 
cases  would  arise  in  the  State  Courts,,  not  only  in  the- 
ordinary  exercise  of  their  concurrent  jurisdiction ; 
but  that  those  tribunals  would  incideataHy  take  cogni- 
sance of  questions  under  the  Constitution,  Laws,  andi 


CHAP.  IH»          SUPREME  COURT.  103 

Treaties  of  the  United  States,  of  which  the  National 
Courts  have  exclusive  jurisdiction  ;  and  as  the  Judi- 
cial Power  of  the  Union  embraces  both  classes  of 
cases,  by  the  very  terms  of  the  Constitution  it  extend- 
ed the  appellate  jurisdiction  of  the  Supreme  Court  to 
the  State  tribunals,  by  making  it  attach  upon  every 
case  comprised  within  the  Judicial  Power  of  the  Ge- 
neral Government. 

357.  This  appellate  jurisdiction  is  required,  to  give 
efficacy  to  the  power  of  deciding  in  all  cases  of  con- 
flict between  the  several  States,  or  of  collision  be- 
tween the  powers  claimed  by  a  State,  and  those 
claimed  by  the  United  States ;  and  to  maintain  the 
supremacy  of  the  Constitution,  Laws,  and  Treaties 
of  the  Union,  over  the  Constitutions  and  Laws  of  the 
several  States,  as  well  as  to  preserve  uniformity  of 
decision  throughout  the  United  States,  upon  all  sub- 
jects embraced  by  the  Federal  Constitution. 

358.  The  appellate  Power  of  the  Federal  Judi- 
ciary over  the  State  tribunals,  extends  to  a  final  judg- 
ment in  a  State  Court,  in  a  case  within  the  cognizance 
of  the  Union,  although  a  State  be  a  party  ;   and  the 
amendment  declaring  that  the  Judicial  Power  of  the 
United  States  is  not  to  be  construed  to  extend  to  any 
suit  in  Law  or  Equity,  commenced  or  prosecuted 
against  a  State  by  an  individual,  does  not  apply  to  a 
Writ  of  Error,  as  it  is  not  a  suit  against  a  State,  within* 
the  meaning  of  the  Constitution. 

359.  Jurisdiction  is  given  to  the  Courts  of  the 
United  States  in  two  classes  of  cases ;  in  the  first,  it 
depends  on  the  character  of  the  cause,  whosoever 
may  be  the  parties ;  and  in  the  second,  it  depends 
entirely  upon  the  character  of  the  parties,  and  it  is 
then  immaterial  what  may  be  the  subject  of  contro- 
versy 


104  JUDICIAL  DEPARTMENT.  PART  I, 

360.  In  an  ordinary  case  of  a  controversy  between 
a  State  and  one  of  its  citizens,  an  Appeal  does  not  lie 
from  the  State  to  the  Federal  Courts,  for,  in  such  a 
case,  the  jurisdiction  is  determined  by  the  character 
of  the  parties  ;  but  when,  in  a  suit  between  a  State 
and  one  of  its  citizens,  the  validity  of  an  act  of  Con- 
gress is  drawn  in  question,  and  the  decision  is  against 
its  validity,  the  appellate   Power  of  the   Supreme 
Court  extends  to  it,  because,  in  all  cases  arising  under 
the  Constitution,  the  Jurisdiction  of  that  Court  may 
be  exercised  in  an  appellate  form,  whoever  may  be 
the  parties. 

361.  Neither  does  it  make  any  difference  in  cases 
arising  under  the  Constitution,  Laws,  and  Treaties  of 
the  Union  ;  whether  the  cause  in  which  the  appellate 
jurisdiction  of  the  Supreme  .Court  is  exercised,  be  a 
criminal  prosecution,  or  a  civil  controversy ;  as  the 
parties  are  not  less  interrested  in  the  operation  of  an 
unconstitutional  Law,  nor  less  entitled  to  the  protec- 
tion of  the  Constitution,  when  the  judgment  of  the 
State  Court    inflicts  a  disgraceful  punishment,  than 
when  it  merely  affects  their  property. 

362.  The  Supreme  Court  Is,  moreover,  clothed 
with  that  superintending  authority  over  the  inferior 
Courts  of  the  United  States,  which  is  requisite  and 
proper  in  the  highest  tribunal,  and  last  resort  for  jus- 
tice, of  the  people  of  the  United  States  -r  and  conse- 
quently it  has  power  to  issue  prohibitory  and  manda- 
tory writs  in  cases  warranted  by  the  principles  and 
usages  of  Law,  to  any  Courts  appointed,  or  persons 
holding  office,  under  the  United  States. 

363.  All  the  Courts  of  the  United  States  have 
power  to  issue  all  writs  not  specially  provided  by 
statute,  which  may  be  necessary  for  the  exercise  of 
their  respective  jurisdictions,  and  agreeable  to  the 


CHAP.  III.  CIRCUIT  COURTS.  105 

principles  and  usages  of  law ;  and  the  individual 
Judges^may,  by  writ  of  Habeas  Corpus,  relieve  the 
citizen  from  all  manner  of  unjust  imprisonment  oc- 
curring under,  or  by  colour  of,  the  authority  of  the 
United  States. 

364.  Under  the  power  granted  to  Congress,  to 
erect  tribunals  inferior  to  the  Supreme  Court,  Circuit 
Courts  are  established  in  each  of  the  Judicial  Dis- 
tricts (with  some  few  exceptions)- of  the  seven  Cir- 
cuits, into  which  the  United  States  are  by  Law  di- 
vided. 

365.  Some  Districts  are  not  embraced  within  any 
Circuit,  and  have   merely  District  Courts ;   which, 
however,  exercise  the  powers  of  a  Circuit  Court, 
within  their  respective  districts,  except  in  cases  of 
error  and  appeal  ;  and  writs  of  Error  and  Appeals  lie 
from  their  decisions,  directly  to  the  Supreme  Court, 
under  the  same  regulations  that  apply  to  the  Circuit 
Courts  of  other  Districts. 

366i  In  the  District  of  Columbia,  (which  comprises 
the  Territory  ceded  to  the  United  States  for  the  seat 
of  the  General  Government,  and  is  under  the  exclu- 
sive jurisdiction  of  Congress,)  there  is  a  Circuit  Court 
composed  of  a  Chief  Justice,  and  two  Associate 
Judges. 

367.  In  each  Judicial  District  comprehended  with- 
in the  seven  Circuits,  two  sessions  of  the  Circuit 
Court  are  annually  held  by  one  of  the  Judges  of  the 
Supreme  Court,  and  the  Judge  of  the  District  Court ; 
and  to  each  Circuit  respectively,  a  particular  Judge 
of  the  Supreme  Court  is  assigned  by  Law.  But  the 
Supreme  Court,  in  cases  where  special  circumstances 
in  their  judgment  render  it  necessary,  may  assign  two 
Judges  of  the  Supreme  Court  to  attend  a  Circuit 
Court, 


106  JUDICIAL  DEPARTMENT.  PART  I. 

368.  If  a  vacancy  happen  by  the  death  of  the  Judge 
of  the  Supreme  Court  to  whom  the  Circuit  is  as- 
signed, the  District  Judge  may  discharge  all  the  duties 
of  the  Circuit  Court  for  his  district,  except  that  he 
cannot  sit  on  a  writ  of  Error  on  a  judgment  of  the 
District  Court ;  and  when  the  District  Judge  is  ab- 
sent, or  has  been  Counsel,  or  is  interested  in  the  cause, 
the  Circuit  Court  may  be  held  by  a  Judge  of  the  Su- 
preme Court  alone. 

369.  If  an  opposition  of  opinions   between  the 
Judge  of  the  Supreme  Court  and  the  District  Judge 
arise  in  a  case  in  which  the  Circuit  Court  has  original 
jurisdiction,  it  is  certified  to  the  {Supreme  Court,  and 
thereupon  the  case  is  removed  into  that  Court  for  a 
final  judgment  or  decree  ;  but  in  all  cases  of  appeal 
or  removal  from  a  District,  to  a  Circuit  Court,  judg- 
ment is  to  be  rendered  in  the  latter,  in  conformity 
with  the  opinion  of  the  Judge  of  the  Supreme  Court. 

370.  The  Circuit  Courts  have  original  and  exclu- 
sive  cognizance  (except  in  certain  cases  hereafter 
mentioned,)  of  all  crimes  and  offences  cognizable 
under  the  authority  of  the  United  States,  exceeding 
the  degree  of  ordinary  misdemeanors  ;  and  of  those 
they  have  concurrent  jurisdiction  with  the  District 
Courts. 

371.  They  have  original  cognizance,  concurrently 
with  the  Courts  of  the*  several  States,  of  all  suits  of  a 
civil  nature  at  Law  or  in  Equity,  where  the  matter  in 
dispute  exceeds  five  hundred  dollars,  and  the  United 
States  are  plaintiffs,  or  an  alien  is  a  party,  or  the  suit 
is  between  a  citizen  of  the  State  where  it  is  brought 
and  a  citizen  of  another  State. 

372.  The  Circuit  Courts  have  also  original  juris- 
diction in  Equity  and  at  Law,  of  all  suits  arising  un- 


CHAP.  III.  CIRCUIT  COURTS.  107 

der  the  acts  of  Congress  relative  to  copyrights,  and 
the  rights  growing  out  of  Patents  for  new  inventions 
and  discoveries  in  the  useful  arts. 

373.  They  have  likewise  original  jurisdiction,  con- 
current with  the  District  Courts,  and  with  the  Courts 
and  Magistrates  of  the  several  States,  of  all  suits  at 
Common  Law  where  the  United  States,  or  an  officer 
thereof,  sues  under  the  authority  of  an  act  of  Con- 
gress ;  although  the  matter  in  dispute  does  not  exceed 
one  hundred  dollars. 

374.  The  Circuit  Courts  have  appellate  jurisdiction 
in  all  final  decrees  and  Judgments  of  the  District 
Courts,  where  the  matter  in  dispute  exceeds  fifty  dol- 
lars ;  and  if  any  suit  be  commenced  in  a  State  Court 
against  an  alien,  or  by  a  citizen  of  the  State  in  which 
the  suit  is  brought,  against  a  citizen  of  another  State, 
and  the  matter  in  dispute  exceeds  five  hundred  dol- 
lars, the  defendant,  on  giving  security,  may  remove 
the  cause  to  the  Circuit  Court  for  the  District ;  and 
this  right  of  removal  is  founded  on  the  appellate  pow- 
er vested  in  the  Courts  of  the  United  States  over  the 
State  Courts  in  all  cases  of  federal  cognizance,  which 
may  be  exercised  as  well  before,  as  after  Judgment 

375.  The  Circuit  Courts  of  the  United   States, 
though  inferior  Courts   in  the  language  of  the  Con- 
stitution, are  not  so  in  the  sense  which  the  Common 
Law  attaches  to  the  term  ;  nor  are  their  proceedings 
subject  to  the  narrow  rules  of  interpretation  which 
apply  to  inferior  Courts  of  Common  Law,  and  Courts 
of  special  jurisdiction.     On  the  contrary,  they  are 
Courts  of  original  and  durable  jurisdiction,  and,  as 
such,  are  entitled  to  liberal  intendments  in  favour  of 
their  powers. 

376.  They  are,  nevertheless,  Courts  of  limited  ju- 
jrisdiction ;  and  have  cognizance,  not  of  cases  gene- 


108  JUDICIAL  DEPARTMENT.  PART  I. 

rally,  but  only  of  a  few  cases  under  special  circum- 
stances, amounting  to  a  small  proportion  of  those 
which  an  unlimited  jurisdiction  would  embrace  ;  and 
the  legal  presumption  is,  that  a  cause  is  without  their 
jurisdiction  until  the  contrary  be  shewn. 

377.  The  District  Courts  of  the  United  States  were 
also  created  in  virtue  of  the  power  granted  to  Con- 
gress by  the  Constitution,  of  erecting  tribunals  infe- 
rior to  the  Supreme  Court. 

378.  The  United  States  are  at  present  divided  into 
thirty-two  Judicial  Districts ;  and  in  general  each  Dis- 
trict is  composed  of  an  entire  State  ;  but  in  some  of 
the  larger  States  there  are  two  Districts. 

379.  A  Court  is  established  in  each  District,  con- 
sisting of  a  single  Judge,  who  holds  annually  four 
stated  terms,  and  also  special  Courts  at  his  discretion  ; 
and  there  is  also  a  District  Court  for  the  ^District  of 
Columbia,  held  by  the  Chief  Justice  of  the  Circuit 
Court  for  that  District. 

380.  The  District  Courts  have,  exclusively  of  the 
State  Courts,  cognizance  of  all  lesser  crimes  and  of- 
fences cognizable  under  the  authority  of  the  United 
States,  and  committed  either  within  their  respective 
Pistricts,  or  upon  the  high  seas,  and  which  are  pu- 
nishable by  fine  not  exceeding  one  hundred  dollars, 
and  imprisonment  not  exceeding  six  months. 

381.  They  have  also  exclusive  original  cognizance 
of  all  civil  causes  of  Admiralty  and  Maritime  jurisdic- 
tion ;  of  seizures  under  the  impost,  navigation,  and 
trade  Laws  of  the  United  States,  where  the  seizures 
are  made  on  the  high  seas,  or  in  waters  within  their 
respective  Districts,  navigable  from  the  sea  by  ves- 
sels of  ten  or  more  tons  burden ;  and  of  all  other 
seizures  under  the  Laws  of  the  United  States ;  and  of 


CHAP.  III.  DISTRICT  COURTS.  109 

all  suits  for  penalties,  or  forfeitures  incurred  under 
those  Laws, 

382.  They  have,  moreover,  jurisdiction  concurrently 
with  the  Circuit  Courts,  and  with  the  State  Courts,  of 
causes  in  which  an  alien  sues  for  a  violation  of  rights 
accruing  to  him  under  the   Law  of  Nations,  or  a 
Treaty  of  the  United  States  ;  and  of  all  suits  at  Com- 
mon Law,  in  which  the  United  States  are  plaintiffs, 
and  the  matter  in  dispute  amounts  to  one  hundred 
dollars. 

383.  They  have  jurisdiction  exclusive  of  the  State 
Courts  of  all  suits  against  Consuls  or  Vice  Consuls, 
except  of  offences  of  which  the  Circuit  Courts  of  the 
United  States  have  the  exclusive  cognizance. 

384.  They  have,  lastly,  exclusive  original  cogni- 
zance of  proceedings  to  repeal  Patents  obtained  sur- 
reptitiously and   upon  false  suggestions,  and  of  com- 
plaints, by  whomsoever  instituted,  in  cases  of  capture 
made  within  the  waters  of  the  United   States,  or 
within  a  marine  league  of  their  coasts. 

385.  The  Judges  of  the  District  Courts  have,  in 
cases  where  the  party  has  not  had  reasonable  time  to 
apply  to  the  Circuit  Court,  as  full  power  as  is  exer- 
cised by  the  Judges  of  the  Supreme  Court,  in  grant- 
ing Writs  of  Injunction  in  Equity  causes,  to  operate 
within  their  respective  Districts,  and  continue  until 
the  next  sitting  of  the  Circuit  Court  for  the  District. 

386.  The  Courts  of  the   Territories  of  the   United 
Slates,  have  been  created  from  time  to  time  by  Acts 
of  Congress  establishing  TERRITORIAL  Governments, 
in  those  parts  of  the  Union  which  were  either  ceded 
by  individual  States  for  the  common  benefit,  or,  hav- 
ing been  obtained  by  Treaty  from  foreign  Nations, 

K 


110  JUDICIAL  DEPARTMENT.  PART  I. 

were  never  comprised  within  the  boundaries  of  any 
of  the  original  members  of  the  Confederacy. 

387.  In  the  Territory  of  Michigan,  Congress  has 
adopted  the  principle  of  the  ordinance  for  the  Go- 
vernment of  the  "  Territory  of  the  United   States 
north-west  of  the  river  Ohio,"  passed  under  the  Con- 
federation, by  which  the  Judges  hold   their  offices 
during  good  behaviour. 

388.  There  is  in  Michigan  a  Supreme  Court,  con- 
sisting of  three  Judges  (appointed  by  the  .President, 
with  the  advice  and  consent  of  the  Senate),  any  two 
of  whom  form  a  Court,  which  possesses  both  a  Com- 
mon  Law   and    Equity   jurisdiction   throughout   the 
Territory.     But  a   fourth   Judge   was   subsequently 
added  for  certain  remote  counties,  with  an  appeal  to 
the  Supreme  Court  of  the  Territory  ;  and  the  powers 
and  duties  of  the  subordinate  Magistrates  are  regu- 
lated by  the  local  Legislature. 

389.  Tn  the  Territories  of  Arkansas  and  Missouri, 
the  Judicial  Power  is  vested  in  a  Superior  Court,  and 
in  such  inferior  Courts  as  their  respective  Legisla- 
tures shall  from  time  to  time  establish,  and  in  Justices 

.of  the  Peace.  The  Judges  of  the  Superior  Court  are 
appointed  by  the  President,  with  the  advice  and  con- 
sent of  the  Senate,  and  those  of  the  inferior  Courts, 
as  well  as  the  local  Magistrates,  by  the  Governor  of 
the  Territory. 

390.  The  Superior  Court  in  each  of  these  Territo- 
ries is  held  at  such  times  and  places  as  the  local  Le- 
gislature directs,  and   is  composed  of  throe  Judges, 
who  continue  in  office  for  four  years,  unless  sooner 
removed  by  the  President,  and  have  jurisdiction  in 
all  civil  and  criminal  cases,  and  exclusive  cognizance 
of  all  capital  cases  within  their  respective  Territories. 


CHAP.  HI.  TERRITORIAL  COURTS.  Ill 

But  any  two  of  the  Judges  constitute  a  Court  of  ap- 
pellate, and  any  one  a  Court  of  original,  jurisdiction. 

391.  In  Florida,  the  Judicial  Power  is  vested  in 
two  Superior  Courts,  and  in  such  inferior  Courts  and 
Magistrates  as  the  Legislative  Council  of  the  Terri- 
tory may  establish. 

392.  The  Judges  and  the  inferior  Magistrates  are 
respectively  appointed  in  the  same  manner,  and  hold 
their  offices    for  a  similar  term  as  the  Judges  and 
Magistrates  of  the  Arkansas  and  Missouri  Territo- 
ries. 

393.  One  of  the  Superior  Courts  is  for  East  Flo- 
rida, and  the  other  for  Weet  Florida  ;   and  cno.h  con- 
sists of  one  Judge.     Each  Court  has  jurisdiction  in 
all  criminal  cases,  and  exclusive  cognizance  of  all 
capital  cases,  within  its  respective  subdivision  of  the 
Territory. 

394.  These  Superior  Courts  are  invested  with  ori- 
ginal jurisdiction  in  all  Civil  cases  of  the  value  of  one 
hundred  dollars,  arid  cognizable  by  the  Laws  of  the 
Territory ;  and  they  have,  moreover,  within  their  re- 
spective limits,  the  same  jurisdiction  in  all  cases  aris- 
ing under  the  Constitution  and    Laws  of  the  United 
States,  as   is  vested   in  the    District  Courts  of  the 
United  States,  in  those  Districts  in  which  the  latter 
have  the  powers  of  a  Circuit  Court,  subject  to  the 
like  rules  and  regulations  in  regard  to  Writs  of  Error 
and  Appeals. 

395.  The  Superior  Courts  of  the  other  Territories 
in  which  a  District  Court  of  the  United  States  has 
not  been  established  by  Congress,  exercise  within 
their  respective  limits  the  same  jurisdiction,  subject 
to  the  like  appeal,  as  the  District  Courts  having  the 


112  JUDICIAL  DEPARTMENT.  PARTI, 

powers  of  Circuit  Courts,  in  those  cases  only  in  which 
the  United  States  are  concerned. 

396.  The  functions  of  the  Judges  of  all  the  Courts 
of  the  United  States  are  strictly  and  exclusively  Ju- 
dicial, except  in  cases  where  the  Territorial  Judges 
exercise  Legislative  Powers.     They  cannot,  there- 
fore, be  called  upon  to  advise  the  President  in  any 
Executive  measures,  or  to  give  extra-judicial  inter- 
pretations of  the  Law,  or  to  act  as  Commissioners 
under  an  Act  of  Congress. 

397.  The  Judges  of  the  District  and  Territorial 
Courts,  are  required  to  reside  within  their  respective 
jurisdictions  ;  and  no  Judge  of  the  United  States  can 
act  as  counsel,  or  be  engaged  in  the  practice  of  the 
Law. 

398.  The  State  Courts  a$d  Magistrates  are  in  some 
cases  invested  by  Congress  with  cognizance  of  cases, 
arising  under  the  Laws  of  the  United  States. 

399.  Congress,  in  the  course  of  its  legislation  upon 
the  objects  entrusted  to  it  by  the  Constitution,  may 
indeed  commit  the  decision  of  causes  arising  under  a 
particular  Law,  solely,  if  deemed  expedient,  to  the 
Courts  of  the  United  States ;  but  in  every  case  in 
which  the  State  Courts  are  not  expressly  excluded, 
they  may  take  cognizance  of  causes  growing  out  of 
an  Act  of  Congress. 

400..  Although  Congress  cannot  confer  jurisdiction 
on  any  Courts  but  such  as  exist  under  the  Constitu- 
tion and  Laws  of  the  United  States ;  yet  the  State 
Courts  may  exercise  jurisdiction  in  cases  authorized 
by  the  Laws  of  the  State,  and  not  prohibited  by  the 
exclusive  jurisdiction  of  the  Federal  Courts. 

401.  Various  duties  have  been  imposed  by 


CHAP.III.       STATE   COURTS   AND   MAGISTRATES.  113 

gress  on  State  Courts  and  Magistrates,  and  they  have 
been  invested  with  jurisdiction  in  Civil  suits,  and  in 
complaints  and  prosecutions  for  fines,  penalties,  and 
forfeitures,  arising  under  the  Laws  of  the  United 
States,  in  Civil  suits  the  State  Courts  entertain  that 
jurisdiction  ;  but  in  penal  and  criminal  cases,  they 
have  in  several  instances  declined  its  exercise. 

40'2.  In  what  cases,  and  to  what  extent,  they  will 
exercise  criminal  jurisdiction  under  the  Laws  of  the 
Union;  and  under  what  circumstances,  and  how  far, 
the  Judges  of  the  State  Courts  have  power  to  issue 
on  Habeas'  Corpus,  and  decide  on  the  validity  of  a 
commitment  or  detainer  under  the  authority  of  the 
National  Government,  are  questions  which  have  been 
variously  determined  in  the  State  Courts,  and  have 
never  been  definitely  settled  in  the  Supreme  Court 
of  the  United  States. 

403.  It  seems,  however,  to  be  admitted,  that  Con- 
gress cannot  compel  a  State  Court  to  entertain  juris- 
diction in  any  case.     It  only  permits  State  Courts 
which  are  competent  to  the  purpose,  and  have  an 
inherent  jurisdiction  adequate  to  the  case,  to  entertain 
suits  in  given  cases ;    and  such  State  Courts  do  not 
thereby  become  "  inferior  Courts,"  in  the  sense  of  the 
Constitution,   because  they  are  not  "  ordained  and 
established  by  Congress." 

404.  The  State  Courts  are  in  these  cases  left   to 
consult  their  own  duty  in   reference  to  their  own 
State  authority  and  organization  ;  but  if  they  do  vo- 
luntarily entertain  jurisdiction  of  causes  cognizable 
under  the  authority  of  the  United  States,  they  do  so 
on  the  condition  that  the  appellate  jurisdiction  of  the 
Union  shall  apply  to  them. 

405.  Their  jurisdiction  of  Federal  causes  must, 


114  POWERS  OF  THE  GOVERNMENT.  PART  II. 

nevertheless,  be  confined  to  Civil  actions  for  civil  de- 
mands, or  to  enforce  penal  statutes ;  for  they  cannot 
hold  jurisdiction  of  offences  exclusively  against  the 
United  States,  as  every  criminal  prosecution  must 
charge  the  offence  to  have  been  committed  against 
the  sovereign  whose  Court  sits  in  judgment  upon  the 
offender,  and  whose  Executive  authority  may  pardon 
him. 

406.  In  all  cases  where  the  jurisdiction  of  the 
State  Courts  is  concurrent  with  that  of  the  Federal 
Courts,  the  sentences  of  either,  whether  of  acquittal 
or  conviction,  is  a  bar  to  a  prosecution  in  the  other 
jurisdiction  for  the  same  offence. 


PART  SECOND. 

#N  THE  NATURE,  EXTENT,  AND  LIMITATION  OF  THE  POW- 
ERS VESTED  IN  THE  NATIONAL  GOVERNMENT,  AND  THE 
RESTRAINTS  IMPOSED  ON  THE  STATES. 

407.  All  the  powers  requisite  to  secure  the  objects 
of  the  Union  are  vested  in  the  General  Government ; 
whilst  all  such  powers  as  are  not  essential  to  those 
objects,  are  reserved  to  the  State  Governments  or  to 
the  People. 

408.  In  all  other  respects  the  sovereignty  of  the 
individual  States  remains  unimpaired  ;  and  the  re- 
spective obligations  of  allegiance  and  protection,  in 
reference  to  them  are  unaltered,  except  that,  in  all 
cases  within  the  range  of  the  Federal  jurisdiction,  the 
paramount  obligations  of  allegiance  and  protection 
with  respect  to  the  General  Government,  necessarily 


PART  II.  POWERS  OF  THE  GOVERNMENT.  115 

supersedes  those  which  would  otherwise  have  been 
reciprocally  due  to  and  from  the  several  States. 

409.  From  the  nature  of  the  case,  the   National 
and  State  Governments  cannot  be  coequal  ;  for  two 
Governments,  of  entirely  concurrent  right  and  au- 
thority, cannot  exist  in  the  same  society. 

410.  Superiority  was  therefore  conferred  on  the 
General    Government,  as  the    Government   of  the 
whole  nation,  over  the  State  Governments,  or  the  Go- 
vernments of  its  several  parts. 

411.  The  Constitution,  in  the  name  of  the  whole 
People,  accordingly  declares  its  own  supremacy,  and 
that  of  the  Laws  made  in  pursuance  thereto,  and  of 
Treaties  made  under  the  authority  of  the  United 
States,  over  the  Constitutions  and  Laws  of  the  seve- 
ral States. 

412.  The  Powers  conferred  on  the  National  Go- 
vernment may  be  reduced  to  different  classes,  as  they 
relate  to  the  following  different  objects,  viz  : 

1st.  Security  from  foreign  danger. 

2d.  Intercourse  with  foreign  nations. 

3d.  Maintenance  of  harmony  amongst  the  States. 

4th.  Certain  miscellaneous  objects  of  general 
utility. 

5th.  Restrictions  on  the  powers  of  the  States  ; 
and, 

6th.  Provisions  for  giving  efficacy  to  the  Powers 
vested  in  the  Government  of  the  United 
States. 


116  SECURITIES  FROM  FOREIGN  DANGER.       PART  II. 


CHAPTER  I. 

OF  THE  TOWERS  VESTED  IIV  THE  GENERAL  GOVERNMENT, 
RELATIVE  TO   SECUK1TY   FROM   FOREIGN  DAGGER. 

413.  As  security  from  foreign  danger  is  one  of  the 
primary  objects  of  civil  society,  so  it  was  an  avowed 
and  essential  purpose  of  the  union  of  the  States  ;  and 
the  powers  requisite  to  attaining  it  were  effectually 
confided  to  the  National  Government,  and  consist 
1.  Of  the  Powers  of  declaring  War,  and  grant- 
ing letters  of  marque  and  reprisal. 

2.  Of  making  rules  concerning  captures  by  land 

and  water. 

3.  Of  providing  armies  and  fleets  ;  and  of  re- 

gulating and  calling  forth  the  militia  ;  and, 

4.  Of  the  Powers  of  levying  taxes,  and  of  bor- 

rowing money. 

414.  The  right  of  self-defence  is  derived  from  the 
Law  of  Nature  ;  and  it  is  the  indispensable  dutv  of 
civil  society  to  protect  its  members  in  the  enjoyment 
of  their  rights,  both  of  person  and  property. 

415.  It  is  in  virtue  of  this  fundamental  principle  of 
every  social  compact,  that  an  injury  done  or  threaten- 
ed to  the  perfect  rights  of  a  Nation,  or  of  any  of  its 
members,  and   susceptible  of  no   other  redress,   is 
deemed  by  all  approved  writers  upon  public  Law, 
to  afford  just  cause  of  war. 

416.  But  as  the  evils  of  war  are  certain,  whilst  its 
results  are  doubtful,  both  wisdom  and  humanity  re- 
quire that  every  possible  precaution  should  be  used, 
and  every   necessary  preparation  made,   before   a 
Nation  engages  in  it. 


CHAP.  I.  POWERS  RELATIVE  TO  WAR.  117 

417.  It  was  formerly  usual  to  precede  hostilities 
by  a  public  declaration,  communicated  formally  to 
the  enemy ;  but  in  modern  times  this  practice  has 
been  discontinued,   and  the  Nation  proclaiming  war 
now  confines  itself  to  a  declaration  within  its  own 
territory,  and  to  its  own  People. 

418.  The  Power  of  declaring  war  is  vested   by  the 
Constitution  of  the  United  States  in  Congress  ;   with- 
out whose  consent  no  State  can  engage  in  war,  unless 
actually  invaded,  or  in  such  imminent  danger  as  will 
not  admit  of  delay. 

419.  Although  Congress  alone,  by  an  Act  passed 
like  other  Laws,  according  to  the  forms  of  legislation, 
can  of  itself  subject  the  Nation  to  war  ;  yet  a  smaller 
portion  of  the  Government  is  competent  to  restore 
peace ;  as  hostilities  may  be  terminated  by  a  truce, 
which,  it  is  presumed,  the  President  of  himself  may 
make,  and  of  which  the  duration  may  be  indefinite  ; 
whilst  Treaties  of  Peace  are  made  by  the  President 
and  Senate,  without  the  intervention  of  the  House  of 
Representatives. 

420.  As  the  delay  of  making  war  may  sometimes  be 
detrimental  to  individuals  who  have  suffered  from  the 
depredations  of  foreign  Nations,  Congress  are  invest- 
ed with   the  Power  of  issuing  Letters  of  Marque  and 
Reprisal ;  the  latter  signifying  a  taking  in  return  ;  the 
former,  passing  the  frontier,  in  order  to  such  taking. 

421.  This  Power  is  plainly  derived  in  all  cases 
from  that  of  making  war ;  and  induces,  in  its  exercise, 
an   incomplete  state  of  hostilities,  which  generally 
ends  in  a  formal  denunciation  of  war. 

422.  By  the  Law  of  Nations,  Letters  of  Marque 
and  Reprisal  may  be  granted  whenever  the  subjects 


118          SECURITIES   FROM   FOREIGN  DANGER.       PART  II. 

of  one  State  are  oppressed  and  injured  by  those  of 
another,  and  justice  is  denied  by  the  JState  to  which 
the  oppressor  belongs. 

423.  They  are  in    the  nature   of  a  Commission 
granted  by  the  Government  to  particular  citizens,  au- 
thorizing them  to  seize  the  bodies  or  goods  of  citizens 
of  the  offending  Nation,  wherever  they  may  be  found, 
until  satisfaction  be  made. 

424.  The    necessity  of  calling   in   the   Sovereign 
Power  to  determine   when  this  proceeding  may  be 
resorted   to,  is  obvious  ;  as  otherwise  every   private 
individual  might  act  as  a  judge  in  his  own  cause,  and 
at  his   pleasure   involve  the  Nation  he  belongs  to  in 
war  to  avenge  his  private  injury. 

425.  The  Power  of  making  "rules  concerning  Cap- 
hires  on  Land  and  IVuter"  which  is  superadded  to 
the  Power  of  declaring  war,  is  not  confined  to   cap- 
tures made  beyond  the  territorial  limits  of  the  United 
States ;  but  comprehends  rules  respecting  the  pro- 
perty of  an  enemy  found  within  those  limits. 

426.  It  is  an  express  grant   to   Congress  of  the 
Power  of  confiscating  such  property,  as  an  independ- 
ent substantive  Power,  not  included  in  the  Power  to 
declare  war. 

427.  When  a  war  breaks  out,  the  question  as  to 
the  disposition  of  enemy's  property  in  the  country  is 
a  question  of  policy  for  the  consideration  of  the  Na- 
tional Legislature,  and  not   proper  for  the  considera- 
tion of  the  Judiciary,  which  can  only  pursue  the  Law 
as  it  is  written. 

428.  A  declaration  of  war  by  the  sovereign  pow- 
er  of  one  State  against   another,  implies   that  the 


CHAP.  I.          PROVIDING  ARMIES  AND   FLEETS.  119 

whole  Nation  declares  war  ;  and  that  all  the  subjects 
of  the  one  are  enemies  to  all  the  subjects  of  the 
other. 

429.  Although  a  declaration  of  war  has  this  effect, 
with  regard  to  individuals,  and  thus  gives  to  them 
those  mutual  and  respective  rights  under  the  Law  of 
Nations,  which  a  state  of  war  confers  ;  yet  the  mere 
declaration  does  not,  by  its  single  operation,  produce 
any  of  those   results  which  are   usually  effected  by 
further  measures  of  the  Government,  consequent  up- 
on the  declaration  of  war. 

430.  By  a  strict  interpretation  of  the  ancient  pub- 
lic Law,  War  gives  to  a  Nation  full  right  to  take  the 
persons,  and   confiscate   the  property,  of   its  enemy 
wherever  it  may  be  found  ;  and  tin;  mitigation  of  this 
rule,  which  the  policy  of  modern  times  has  introduced 
into  practice,  although  it  may  aftect  its  exercise,  can- 
not impair  the  right  itself;  and  whenever  the  Legis- 
lature chooses  to  l»rin<r  it  into  operation,  the  Judicial 
department  must  give  it  effect. 

431.  Until   the  Legislative  will,  however,  is  dis- 
tinctly declared,  no  power  of  condemnation  can  exist 
in  the  Courts;  and  proceedings  to  condemn  enemy's 
property  found  in  the   country  at  the  declaration  of 
war,  can  be  sustained  only  on   the   principle  of  their 
having  been  commenced  in  execution  of  an  existing 
Law. 

432.  An   act  of  Congress  simply  declaring  war, 
does  not,  by  its  own  operation,  so  vest  such  property 
in  the  Government  as  to  support  Judicial  proc  e  lings 
for  its  seizure  and  condemnation  ;  but  vests  merely 
a  right,  of  which  the  assertion  depends  on  the  future 
action  of  the  Legislature. 

433.  The  Power  of  raising  armies  and  equipping 


120  SECURITIES  FROM  FOREIGN  DANGER.      PART  il. 

fleets,  seems  to  be  involved  in  the  power  of  declaring 
war ;  and  to  have  left  it  to  be  exercised  by  the  States 
under  the  direction  of  Congress,  would  have  invert- 
ed a  primary  principle  of  the  New  Constitution, 
and  transferred  in  practice,  the  care  of  the  common 
defence,  from  the  Federal  head,  to  the  individual 
members  of  the  Union. 

434.  From  the  nature  of  the  Federal  Government, 
there  can  be  little  danger  from  a  standing  army  in 
time  of  peace  ;  whilst  the  impolicy  of  restraining  the 
discretion  of  Congress  is  manifest,  from  considering 
that  the  efficiency  of  the  power  depends  on  its  being 
indefinite  ;  and  upon  its  extending  to  the  maintenance 
of  an  army  and  navy  in  peace  as  well  as  in  war. 

435.  Unless  the  National  Government  could  set 
bounds  to  the  ambition,  injustice,  or  exertions  of  other 
nations,  no  restraints  should   be   imposed  on  the  dis- 
cretionary powers  of  Congress  in  relation  to  the  sub- 
ject ;  nor  any  limits  prescribed  to  its  efforts  for  the 
defence  and  preservation  of  the  Nation. 

436.  A  readiness  for  war  in  time  of  peace  is  not 
only  necessary  for  self-defence,  but  affords  the  most 
certain  means  of  preventing  aggression,  by  exhibiting 
such  resources  and   preparations  for  repelling  it,  as 
may  discourage  or  deter  an  enemy  from  attempts 
which  would  probably  prove  unavailing. 

437.  A  jealousy  of  the  power  of  raising  and  main- 
taining armies  and  fleets  in  time  of  peace,  arose  from 
the  prevailing  sentiment  at  the  time  of  the  Revolution, 
in  regard  to  the  undefi  ed  power  of  making  war,  and 
supporting,  by  its  own  authority,  regular  troops  in  time 
of  peace,  which  was  the  acknowledged  prerogative  of 
the  British  crown. 


CHAP,  1.  MILITARY  ESTABLISHMENTS.  121 

438.  The  abuse  of  this  prerogative  had  led  to  the 
adoption  of  that  article  in  the  Bill  of  Rights,  framed 
by  the  Convention-Parliament  of  England  in  1688, 
which  declares,  that  "  raising  or  keeping  a  standing 
army  in  time  of  peace,  unless  with  the  consent  of  Par- 
liament, is  against  Law." 

439.  The  principles  which  had  inculcated  in  the 
Colonists,  jealousy  of  the  power  of  an   hereditary 
monarch,  seem  to  have  extended  it,  after  indepen- 
dence was  declared,  to  the  Representatives  of  the 
People  in  the  State  Legislatures, 

440.  In  the  Constitutions  of  two  of  the  States, 
prohibitions  of    Military  establishments  in  time  of 
peace  were  introduced  ;  and  in  those  of  some  others 
of  the  States  in  which  the  absolute  prohibition  was 
not  adopted,  a  clause  similar  to  that  of  the  English 
Bill  of  Rights,  was  inserted. 

441.  This  clause,  however,  was  not,  from  its  terms, 
applicable  to  the  State  Governments  ;  as  the  power 
of  raising  armies  could  by  no  construction,  be  held 
to  reside  any  where  else  than  in  the  Legislatures 
themselves  ;  and  its  introduction  was  in  effect  to  de- 
clare, that  a  measure  should  not  be  adopted  without 
the  consent  of  that  body,  which  alone  had  power  to 
originate  and  sanction  it. 

442.  In  the  Constitutions  of  the  other  States,  there 
is  no  provision  on  the  subject ;  and  even  in  those 
which  seemed  to  have  intended  a  total  interdiction 
of  Military  establishments  in  time  of  peace,  the  ex- 
pressions are  monitory,  rather  than  prohibitory  ;  whilst 
their  ambiguity  appears  to  have  resulted  from  a  con- 
flict between  the  desire  of  excluding  such  establish- 
ments, and  the  conviction  that  their  absolute  exclu- 
sion would  be  unwise  and  unsafe. 

L 


122  SECURITIES  FROM  FOREIGN  DANGER.      PART  II. 

443.  The  only  direct  restriction  on  the  power  of 
Congress,  in  relation  to  the  subject,  is  contained  in  an 
amendment  of  the  Constitution,  which  provides  that 
"  no  soldier  shall,  in  time  of  peace,  be  quartered  in 
any  house  without  the  consent  of  the  owner  ;  nor  in 
time  of  war,  but  in  a  manner  to  be  prescribed  by 
Law," 

444.  The  Union  of  the  States  under  the  National 
Constitution,  removes  every  pretext  for  a  Military 
establishment  which  could  prove  dangerous  ;  and  the 
distance  of  this  Continent  from  the  powerful  Nations 
of  Europe,  affords  a  security  that  the  Government 
will  never  be  able  to  persuade  or  delude  the  People 
into  the  support  of  large  and  expensive  peace  esta- 
blishments. 

445.  The  Union  itself  is,  moreover,  the  principal 
security  against  danger  from  abroad,  as  well  as  against 
internal  commotion  or  domestic  usurpation ;  whilst 
it  is  the  only  source  of  the  Maritime  strength  of  the 
Nation  ;  and  the  necessity  of  a  Navy,  and  the  proof 
of  its  efficacy  as  an  arm  of  National  defence,  have 
removed  the  scruples  which  at  one  period  prevented 
due  attention  to  encouraging  it  in  time  of  peace. 

446.  The  Power  of  regulating  the  Militia,  and  of 
commanding  its  services  in  times  of  insurrection  or 
invasion,  are  incident  to  the  duties  of  superintending 
the  common  defence  and  internal  tranquillity  of  the 
Union, 

447.  The  advantages  of  uniformity  in  the  organiza- 
tion and  discipline  of  the  Militia,  could  only  be  at- 
tained by  expressly  confiding  its  regulation  to  the 
General  Government ;  and  it  was  essential  that  Con- 
gress should  have  authority  not  only  "  to  provide  for 
pajling  forth  the  Militia  to  execute  the  Laws  of  the 


CHAP.  I.  REGULATING  THE  MlLlTlA.  123 

Union,  suppress  insurrections,  and  repel  invasions  ;" 
but  also  "  to  provide  for  organizing,  arming,  and  dis- 
ciplining the  Militia,  and  for  governing  such  parts  of 
them  as  may  be  employed  in  the  service  of  the  United 
States/' 

448.  The  President  being  constituted  Commander 
in  Chief  of  the  Militia  when  called  into  the  actual 
service  of  the  Union,  is  authorized  by  Law,  in  case  of 
invasion,  or  of  imminent  danger  thereof,  to  call  forth 
such  numbers  of  them,  most  convenient  to  the  scene 
of  action,  as  he  may  judge  necessary. 

449.  The  Militia  so  called  out  are  subject  to  the 
rules  of  war,  and  the  Law  imposes  a  h'ne  upon  every 
delinquent,  to  be  adjudged  by  a  Court-Martial,  com- 
posed of  Militia  Oflicers  only,  and  held  and  conduct- 
ed in  the  manner  prescribed  by  the  Articles  of  War. 

450.  The  manner  in  which  the  Militia  are  to  be 
organized,  armed,  disciplined,  and  governed,  is  pre- 
scribed by  Law ;  and  provision  is  made  for  drafting, 
detaching,  and  calling  forth  the  State  quotas,  when 
required  by  the  President. 

451.  The  Act  of  Congress  renders  the  President 
the  sole  and  exclusive  judge  of  the  existence  of  the 
exigency  in  which  the  Constitution  authorizes   the 
Militia  to   be  called   forth   into  the  service  of  the 
United  States  ;    and  his  decision  is  conclusive  upon 
all  other  persons. 

452.  This   construction  necessarily  results   from 
the  nature  of  the  power  given  by  the  Constitution, 
and  from  the  manifest  object  contemplated  by  the 
Act  of  Congress. 

453.  The  power  itself  is  to  be  exersised  upon  sud- 


124     SECURITIES  FROM  FOREIGN  DANGER,   PART  II. 

den  emergencies,  and  under  circumstances  which 
may  affect  the  existence  of  the  Union,  and  a  prompt 
and  unhesitating  obedience  is  indispensable  to  the 
complete  attainment  of  the  object. 

454.  As  the  power  of  regulating  the  Militia,  and 
of  commanding  its  services  in  times  of  insurrection 
and  invasion,  are  incident  to  the  duty  of  superintend- 
ing the  common  defence  and  internal  tranquillity  of 
the  Union,  that  power  must  be  so  construed,  with 
respect  to  the  modes  of  its  exercise,  as  not  to  defeat 
the  end  in  view. 

455.  If  the  Governor  of  a  State,  or  other  superior 
officer,  had  a  right  to  contest  the  orders  of  the  Pre- 
sident, upon  their  own  doubts  as  to  the  existence  of 
the  exigency,  it  would  be  equally  the  right  of  every 
inferior  officer  and  soldier ;  and  an  act  done  by  any 
person  in  furtherance  of  such  orders,  would   subject 
the  party  to  a  civil  suit,  in  which   his  defence  would 
rest  upon  his  ability  to  establish,  by  competent  proof, 
the  facts  upon  which  the  exigency   was  alleged  to 
have  arisen. 

456.  This  would  be  subversive  of  military  disci- 
pline, and  expose  the  best  intentioned  persons  to  the 
chances  of  a  ruinous  litigation  ;  and  in  many  instan- 
ces, the  evidence  upon  which  the  President  might 
decide,  would  not  constitute  technical  proof;  or  its 
disclosure  might  reveal  important  secrets  of  State 
which  the  public  safety  might  require  to  be  concealed. 

457.  The  President  being  constituted  the  judge  of 
the  existence  of  the  exigency,  is  bound  to  act  accord- 
ing to  his  belief  of  the  facts ;  and  if  he  decides  to 
call  forth  the  Militia,  and  his  orders  for  this  purpose 
are  in  conformity  with  the  provisions  of  the  Law,  it 
follows  as  a  necessary  consequence,  that  every  sub- 
ordinate officer  is  bound  to  obey  them. 


CHAP.   I.  CALLING  FORTH  THE  MILITIA.  125 

458.  Whenever  an  Act  of  Congress  gives  to  the 
President  a  discretionary  power,  to  be  exercised  by 
him  upon  his  own  opinion  of  certain  facts,  it  is  a  sound 
rule  of  construction,  that  the  statute  constitutes  him 
the  sole  and  exclusive  judge  of  the  existence  of  those 
facts  ;  and  it  is  not  considered  a  valid  objection,  that 
such  power  may  be  abused  ;   for  there  is  no  power 
which  is  not  susceptible  of  abuse. 

459.  The  remedy  for  the  abuse  of  this  and  all  other 
powers,  is  afforded  by  the  Constitution  itself ;  and  in 
a  free  Government  such  dangers  must  be  remote, 
since,  in  addition  to  the  high  qualities  which  the  Chief 
Executive  Magistrate  must  be  presumed  to  possess, 
the  frequency  of  elections,  the  watchfulness  of  the 
immediate  representatives  of  the  People,  and  the  re- 
sponsibility of  the  President,  are  all  the  securities 
which  can  be  useful  to  guard  against  usurpation  or 
tyranny. 

460.  Nor  is  it  necessary  that  it  should  appear  that 
the  particular  exigency  in  fact  existed,  upon  the  be- 
lief of  which  the  President  may  have  exercised  his 
discretion  in  the  execution  of  this  power ;  for  the 
same  principles  are  not  applicable  to  the  delegation 
and  exercise  of  the  power  entrusted  to  the  Supreme 
Executive  of  the  Nation,  for  great  political  purposes, 
as  are  applied  to  subordinate  agents,  acting  under  the 
most  narrow  and  special  authority. 

461.  When  the  President  exercises  an  authority 
confided  to  him  by  Law,  the  presumption  is  that  it 
is  exercised  in  pursuance  of  the  Law ;  for  every  pub- 
lic officer  is  presumed  to  act  in  pursuance  of  his  duty, 
until  the  contrary  be  shewn ;  and  this  rule  applies 
with  greater  force  to  the  Chief  Magistrate  of  the 
Union. 

462.  If  the  non-existence  of  the  exigency  could  be 

12 


126  SECURITIES   FROM  FOREIGN  DANGER.         PART  II 

averred  and  shewn  by  the  delinquent  party,  it  would 
then  be  liable  to  be  inquired  into  as  a  fact  by  a  jury  ; 
and  thus  the  legality  of  the  order  of  the  President 
would  depend,  not  on  his  own  judgment  as  to  the 
fact,  but  upon  the  decision  of  a  Jury  upon  such  proofs 

of  its  existence  as  could  be  submitted  to  them. 

• 

463.  The  orders  of  the  President  are  to  be  given 
to  the  Chief  Executive  Magistrate  of  the  State,  or  to 
any  Militia  officer  he  may  think  proper ;  and  neglect 
or  refusal  to  obey  such  orders,  is  declared  to  be  a 
public  offence,  subjecting  the  offender  to  trial  and 
punishment  by  a  Court-martial. 

464.  The  Militia,  when  called  into  the  service  of 
the  United  States,  are  not  considered  as  being  in  that 
service,  until  they  are  mustered  at  the  place  of  ren~ 
dezvous  ;  and  until  that  be  done,  a  State  has  a  right, 
concurrent  with  the  United  States,  to  punish  their 
delinquencies. 

465.  After  the  Militia  have- been  actually  mustered 
at  the  place  of  rendezvous,  into  the  service  of  the 
United  States,  their  character  changes  from  State,  to 
National  Militia ;   and  the  authority  of  the  General 
Government  over  them  becomes  exclusive. 

466.  The  Power  of  levying  taxes,  and  borrowing 
money,  is  properly  included  in  the  same  class  with  the 
power  of  providing  for  the  national  defence  ;  as  the 
latter  is  specified  in  the  Constitution  as  one  of  the 
leading  objects  of  vesting  the  power  of  taxation  in 
Congress. 

467.  The  support  of  the  National  forces,  the  ex- 
pense of  raising  troops,  of  building  and  equipping 
fleets,  and  all  other  expenditures  in  any  wise  con- 
nected with  military  and  naval  operations,  are  not, 


CHAP.  f.         OF  LEVYING  TAXES.  127 

however,  the  only  objects  to  which  the  jurisdiction 
of  Congress  with  respect  to  revenue,  extends. 

468.  The  terms  of  the  Constitution  by  which  the 
power  is  conferred,  embrace  a  provision  for  the  sup- 
port of  the  civil  establishment  of  the  United  States, 
for  the  payment  of  the  National  debts,  and,  in  gene- 
ral, for  all  those  objects  for  which  the  general  welfare 
requires  the  disbursement  of  money  from  the  Na- 
tional Treasury. 

469.  The  necessity  of  vesting  this  power  in  the 
Government  of  the  United  States,  is  obvious ;  as  no 
Government  can  b«  supported  without  possessing  the 
means  within  itself  of  procuring  a  regular  and  ade- 
quate supply  of  revenue,  so  far  as  the  resources  at 
its  command  will  permit. 

470.  There  must  of  necessity  be  conferred   on 
every  Government,  a  power  of  taxation  in  some  shape 
or  other ;   and   in   the  Government  of  the  United 
States,  it  is  co-extensive  with  the  purposes  of  the 
Constitution. 

471.  Congress  is  accordingly  invested  with  power 
"  to  lay  and  collect  taxes,  duties,  imposts,  and  excises ; 
to  pay  the  debts,  and  provide  for  the  common  de- 
fence, and  general  welfare ;"  and  it  is  also  invested 
with  a  distinct  power  "  to  borrow  money  on  the 
credit  of  the  United  States." 

472.  The  power  of  taxation  is  qualified,  in  its  exer- 
cise, by  a  provision  requiring  "  that  capitation  and 
other  direct  taxes,  shall  be  apportioned  among  the 
several  States  according  to  their  respective  numbers, 
as  ascertained  by  the  census,  and  determined  by  the 
rule  for  the  apportionment  of  Representatives  in 
Congress." 


128  SECURITIES  FROM  FOREIGN  DANGER.       PART  II. 

473.  This  power  is  further  qualified  by  a  provision 
that  "  all  duties,  imposts,  and  excises,  shall  be  equal 
throughout  the  United  States ;"  and  it  is  absolutely 
restricted  by  a  prohibition  upon  Congress,  to  "  lay 
any  tax  or  duties  on  articles  exported  from  the  United 
States." 

474.  The  Constitution  does  not  define  the  exclu- 
sive subjects  of  national  taxation  ;  although  in  some 
instances  an  interference  with  many  of  the  sources 
of  State  revenue,  must  have  been  foreseen,  from  the 
exercise  of  a  concurrent  power  in  the  General  Go- 
vernment. 

475.  But  it  was  better  that  a  particular  State  should 
sustain  this  inconvenience,  than  that  the  general  ne- 
cessities should  fail  of  supply  ;  and  it  was  manifestly 
intended  that  Congress  should   possess  full   power, 
subject  only  to  the  specified  qualifications  and  restric- 
tions, over  every  species  of  taxable  property. 

476.  The  term  Taxes  is  general ;  and  is  used  in 
the   Constitution  to  confer  a  plenary  authority  on 
Congress,  in  all  cases  of  taxation  to  which  the  powers 
vested  in  the- 'Union  extend. 

477.  The  most  familiar  general  division  of  taxes, 
is  into  direct  and  indirect ;  and  although  the  Consti- 
tution designates  only  the  former  species,  it  necessa- 
rily implies  the  existence  of  the  latter. 

478.  The  general  term,  then,  includes — 

1st.  Direct  taxes,  which  are  properly  capitation 

taxes,  and  taxes  upon  Land. 
2d.  Duties,  imposts,  and  excises ;  and, 
3d.  All  other  taxes  of  an  indirect  operation. 

479.  A  direct  Tax,  operates  and  takes  effect  inde- 


CHAP.  I.          OP  LEVYING  TAXES.  129 

pendently  of  consumption  or  expenditure  ;  whilst 
indirect  Taxes  affect  expense  or  consumption  ;  and 
the  revenue  arising  from  them  is  dependent  there- 
upon. 

480.  The  practical  importance  of  this  distinction, 
arises  from  the  different  modes  in  which  the  different 
species  of  taxes  are  levied  ;   direct  taxes  being  re- 
quired to  be  apportioned  amongst  the  several  States, 
according  to  the  respective  numbers  of  their  inhabit- 
ants ;  whilst  indirect  taxes,  not  admitting  of  this  ap- 
portionment, are  directed  to  be  "  uniform  throughout 
the  United  States,"  on  the  articles  subjected  to  taxa- 
tion. 

481.  If  Congress  thinks  proper  to  raise  a  sum  of 
money  by  direct  taxation,  the  quota  of  each  State 
must  be  fixed  according  to  the  census,  and  in  confor- 
mity with  the  rule  of  apportionment  prescribed  by  the 
Constitution  ;  but  if  indirect  taxation  be  resorted  to, 
the  same  duty  must  be  imposed  throughout  the  Union 
on  the  article  liable  to  it,  whether  its  quantity  or  con- 
sumption be  greater  or  less  in  the  respective  States. 

482.  The  Constitution  considers  no  taxes  as  direct 
taxes,  but  such  as  may  be  laid  in  proportion  to  the 
census,  and  the  rule  of  apportionment  is  held  not  to 
apply  to  a  tax  on  carriages  ;  nor  could  such  a  tax  be 
laid  by  that  rule,  without  great  inequality  and  injustice. 

483.  A  tax  on  carriages  was  accordingly  consider- 
ed as  an  indirect  tax  on  expense  or  consumption,  and 
as  included  within  the  power  to  lay  duties;  and  the 
better  opinion  seems  to  be,  that  the  direct  taxes  con- 
templated by  the  Constitution  are  only  two,  viz ;  a 
capitation  or  poll-tax,  and  a  tax  on  land. 

484.  Although  duties  must  be  uniform,  and  direct 


130         SECURITIES  FROM  FOREIGN  DANGER.        PART  It. 

taxes  apportioned  according  to  numbers,  yet  the  pro- 
vision of  the  Constitution,  with  respect  to  the  latter, 
does  not  limit  the  power  of  Congress  to  the  imposi- 
tion of  taxes  upon  the  inhabitants  of  the  several 
States  only ;  but  that  power  extends  equally  to  all 
places  over  which  the  National  Government  has  ju- 
risdiction, and  applies  to  the  District  of  Columbia, 
and  to  the  organized  Territories,  although  their  inha- 
bitants are  not  represented  in  Congress. 

485.  The  power  of  Congress  to  exercise  exclusive 
jurisdiction  over  the  District  of  Columbia,  and  to  go- 
vern the  Territories  of  the  United  States,  includes  the 
power  of  taxing  their  inhabitants ;  but  Congress  is 
not  bound  absolutely  to  exercise  that  power ;  and 
may,  in  their  discretion,  extend  a  tax,  or  not,  to  all 
the  Territories,  as  well  as  to  the  States. 

486.  A  direct  tax,  if  laid  at  all,  must  be  laid  on 
every  State  conformably  to  the  census  ;  and  there- 
fore Congress  has  no  power  to  exempt  a  State  from 
its  due  share  of  the  burthen ;  and  although  it  is  not 
under  the  same  necessity  of  extending  the  tax  to  the 
District  of  Columbia,  or  to  the  National   Territories, 
yet,  if  the  tax  be  actually  extended  to  either  of  them, 
the  same  constitutional  rule  of  apportionment,  must 
be  applied  in  its  imposition. 

487.  The  construction  which  allows  Congress,  in 
the  exercise  of  its  discretion,  to  omit  extending  a  tax 
to  those  portions  of  the  Union  which  are  not  directly 
represented  in  the  National  Legislature,  is  not  only 
the  most  convenient  interpretation,  as  the  expense  of 
collecting  a  direct  tax  in  the  more  remote  Territo- 
ries might  exceed  its  amount,  but  it  enables  Congress 
to  avoid  the  imputation  of  violating,  even  in  appear- 
ance, the  fundamental  principle  which  regards  taxa- 
tion and  representation  as  inseparable. 


CHAP.  I.  PROTECTING  DUTIES.  131 

488.  No  State  can, "  without  the  consent  of  Con- 
gress, lay  any  tonnage  duty,  or  imposts,  or  duties  on 
imports  or  exports,  except  what  may  be  absolutely 
necessary  for  executing  its  inspection  Laws,"  and  the 
net  produce  of  all  duties  and  imposts  laid  by  any 
State  on  imports  or  exports,  are  declared  to  "  be  for 
the  use  of  the  Treasury  of  the  United  States/'  and  all 
such  State  Laws  are  subject  to  the  revision  and  con- 
trol of  Congress. 

489.  Under  this  power,  "  to  lay  and  collect  duties, 
imposts,  and  excises,  to  pay  the  debts  and  provide 
for  the  common  defence  and  general  welfare  of  the 
United  States,"  Congress  has,  from  the  earliest  pe- 
riod of  the  Government,  claimed,  and  exercised  au- 
thority to  lay  duties  for  the  purpose  of  encouraging 
and  protecting  articles  of  domestic  produce  or  ma- 
nufacture, as  well  as  for  raising  a  revenue  on  im- 
ports. 

490.  But  this  authority  has  been  questioried,  upon 
a  construction  of  the  Constitution,  which  excludes 
"the  general  welfare"  as  one  of  the  objects  for  which 
this  branch  of  the  power  of  taxation  was  surrendered 
by  the  several  States  ;  and  denies  that  it  can  be  ap- 
plied to  any  other  purposes  than  that  of  paying  the 
debts,  supporting  the  civil  and  military  establishments 
of  the  Union,  and  of  carrying  into  effect  the  powers 
specificallyenumerated  in  the  Constitution,  and  vested- 
by  it  in  Congress. 

491.  It  is,  nevertheless,  a  sound  rule  of  construc- 
tion, and  universal  in  its  application,  that  the  different 
parts  of  the  same  instrument  ought  to  be  so  expound- 
ed, as  to  give  effect,  if  possible,  to  the  whole,  and  to 
every  part  susceptible  of  meaning. 

492.  As  it  cannot  be  presumed  that  the  term  "  ge- 


132  SECURITIES  FROM  FOREIGN  DANGER.      PART  II. 

neral  welfare,"  was  introduced  into  the  Constitution 
for  no  purpose  whatever,  those  words  cannot  be  ex- 
cluded from  all  share  in  the  meaning,  unless  they  are 
incapable  of  bearing  any  signification  in  the  con- 
nexion in  which  they  are  used,  or  of  being  reconciled 
either  to  the  remainder  of  the  clause  of  which  they 
form  a  part,  or  to  other  parts  of  the  Constitution. 

493.  If  objects  capable   of  being  embraced   by 
these  general  expressions,  cannot  be  deemed  to  be 
comprised  amongst  the  more  definite  objects  pre- 
viously or  subsequently  enumerated,  it  must  be  intend- 
ed that  other  objects  than  either  of  these,  were  in- 
tended to  be  accomplished  by  means  of  the  taxing 
power ;  and  that  such  further  objects  comprehend 
every  thing  to  which  "  the  general  welfare"  requires 
this  power  of  Congress  to  be  applied,  as  the  direct 
means  of  effecting  the  end  proposed. 

494.  Unless  Congress  have  power  to  afford  this 
encouragement  and  protection,  by  the  means  in  ques- 
tion, such  power  exists  no  where  in  the  Union ;  as 
the  State  Legislatures  cannot  impose  duties  on  arti- 
cles of  importation  without  the  consent  of  Congress, 
and  have  surrendered  to  Congress  the  exclusive  pow- 
er of  regulating  commerce  with  foreign  nations. 

495.  Whether  "  the  general  welfare"  be,  in  fact, 
promoted  by  imposing  duties  for  the  encouragement 
and  protection  of  domestic  manufactures,  is  a  ques- 
tion of  National  policy,  involving  facts  and  opinions 
from  their  nature  not  cognizable  in  Courts  of  Justice, 
and  depending  for  their  determination  upon  the  sound 
exercise  of  Legislative  discretion. 

496.  Whatever  may  be  the  opinions  of  enlightened 
men,  as  to  the  policy  of  protecting  domestic  manu- 
factures, or  as  to  the  question,  whether  "  the  general 


CHAP.  I.  PROTECTING  DUTIES.  133 

welfare"  be  indeed  promoted  by  the  imposition  of 
duties  on  articles  of  foreign  importation  ;  those  opi- 
nions must  be  founded  on  views  of  national  policy, 
and  principles  of  political  economy,  upon  which 
none  but  the  National  Legislature  can,  for  any  prac- 
tical purpose,  authoritatively  decide. 

497.  Unless  Congress  had  authority  to  decide  on 
the  facts  and  principles  upon  which  the  exercise  of 
its  Legislative  discretion  depends,  those  facts  and 
principles  would  be  subject  to  judicial  examination, 
and  a  construction  might  be  given  to  the  Constitu- 
tion, not  merely  by  the  judgment  of  a  Court  upon  the 
question  of  law,  whether  Congress  has  power  "  to 
lay  duties  to  provide  for  the  general  welfare,"  but, 
upon  the  opinion  of  a  Jury  upon  the  question  of  fact, 
whether  the"  general  welfare"  was, upon  sound  prin- 
ciples of  public  policy,  actually  promoted  by  protect- 
ing duties. 

498.  The  objects  to  which  the  surplus  revenue 
arising  from  protecting  duties  are  applied,  unless  de- 
signated in  the  Law  authorizing  them  to  be  levied 
and  collected,  can  have  no  bearing  on  the  general 
question  of  the  Constitutionality  of  Laws,  providing 
merely  for  their  being  levied  and  collected. 

499.  When  collected  and  paid  into  the  Treasury 
of  the  United  States,  the  proceeds  of  such  duties  are 
at  the  disposal  of  Congress  ;  and  as  "  no  money  can 
be  drawn  from  the  Treasury,  but  in  consequence  of 
appropriations  made  by  Law,"  no  question  as  to  the 
constitutionality  of  the  objects  to  which  that  portion 
of  the  public  revenues  may  be  applied,  can  arise  until 
a  Law  be  proposed  for  their  specific  appropriation. 

500.  Neither  is  an  inequality  in  the  operation  of 
protecting  duties,  contrary  to  the  provision  of  the 


134  FOREIGN  INTERCOURSE.  PART  H. 

Constitution,  which  requires  all  duties  to  be  uniform 
throughout  the  United  States  ;  as  the  uniformity  re- 
quired is  in  the  imposition,  and  not  in  the  operation, 
of  the  duties ;  and  whatever  may  be  the  fact,  in  re- 
gard to  their  operation,  it  must  depend  on  the  expense 
and  consumption  of  individuals,  which  are  beyond 
the  control  of  Legislation. 

501.  The  power  of  borrowing  money  on  the  credit 
of  the  United  States,  is  conferred  on  the  National  Go- 
vernment in  general  terms ;  but  as  the  public  credit 
of  the  Union  must  depend  on  the  financial  resources 
placed  at  its  command,  this  power  must  have  been 
intended  to  be  exercised  in  anticipation  of  the  Na- 
tional resources,  and  must  consequently  be  subject  to 
the  same  restrictions,  as  to  its  objects,  to  which  the 
power  of  taxation  is  limited  and  confined. 


CHAPTER  II. 

OF  THE  POWERS  VESTED  IN  THE  GENERAL  GOVERNMENT, 
FOR  REGULATING  INTERCOURSE  WITH  FOREIGN  NA- 
TIONS. 

502.  The  powers  vested  in  the  General  Govern- 
ment for  regulating  intercourse  with  foreign  nations, 
consist 

1st.  Of  the  Powers  to  make  Treaties,  and  to 
send  and  receive  Ambassadors,  and  other 
public  Ministers  and  Consuls. 
2d.  Of  the  Power  to  regulate  foreign  Com- 
merce, including  a  Power  to  prohibit,  after 
a  certain  period,  now  elapsed,  the  importa- 
tion of  slaves ;  and, 

3d.  Of  the  Power  to  define  and  punish  piracies, 
and  felonies  committed  on  the  high  seas, 
and  offences  against  the  Law  of  Nations. 


CHAP.  II.  TREATIES.  135 

503.  The  Powers  to  make  Treaties,  and  to  send 
and  receive  Ambassadors,  are  essential  attributes  of 
National  sovereignty;  and  of  that  international  equali- 
ty which  the  interests  of  every  sovereignty  require 
it  to  preserve. 

504.  As  Treaties  existed  between  the  United  States 
and  foreign  Nations,  at  the  adoption  of  the  Constitu- 
tion, it  was  proper  to  vary  its  terms  in  regard  to 
Treaties,    from    its  general    expressions   relative    to 
Laws,  of  the  United  States  ;  and  to  declare,  in  refe- 
rence to  the  former,  that  "  Treaties,  made,  or  -which 
should  be  made,  under  the   authority  of  the   United 
States,"  should  constitute  a  part  of  the  Supreme  Law 
of  the  land. 

505.  These  expressions  were  considered  as  includ- 
ing both  Treaties  made  previously  to  the  Constitution, 
and  those  which  might  be  subsequently  negotiated  ; 
and  it  has  accordingly  been  adjudged,  that  the  clause 
not  only  applies  to  Treaties  subsisting  at  the  ratifica- 
tion of  the  Constitution,  as  well  as  to  those  since  con- 
cluded ;  but  that  it  effectually  repeals  so  much  of  all 
State  Constitutions  and  Laws  as  are  repugnant  to 
such  previously  existing  Treaties. 

506.  More  general  and  extensive  terms  are  used, 
also,  in  vesting  the  power  with  respect  to  Treaties, 
than  in  conferring  that  relative  to  Laws ;  and  whilst 
the  latter  is  laid  under  several  restrictions,  there  are 
none  imposed  on  the  exercise  of  the  former,  notwith- 
standing it  is  committed  to  the  President  and  Senate, 
in  exclusion  of  the  House  of  Representatives. 

507.  Although  the  President  and  Senate  are  in- 
vested with  this  high  and  exclusive  control  over  all 
those  subjects  of  negotiation  with   foreign  Nations, 
which  may  eventually  affect  important  domestic  in* 


136  FOREIGN  INTERCOURSE.  PART  11. 

terests,  yet  it  would  have  been  impossible  to  have 
defined  a  power  of  this  nature  ;  and  therefore  gene- 
ral terms  only  were  used  in  conferring  it. 

508.  These  general  expressions,  however,  ought 
to  be  scrupulously  confined  to  their  legitimate  signi- 
fication ;  and  in  order  to  ascertain  whether  the  exe- 
cution of  the  Treaty-making  power  can  be  supported 
in  any  given  case,  the  principles  of  the  Constitution, 
from  which  the  power  proceeds,  must  be  carefully 
applied  to  it. 

509.  The  power  must  be  construed  in  subordination 
to  the  Constitution  ;  and,  however  in  its  operation  it 
may  qualify,  it  cannot  supersede  or  interfere  with,  any 
other  of  its  fundamental  provisions ;  nor  can  it  be  so 
interpreted  as  to  authorize  the  destruction  of  other 
powers  given  in  that  instrument. 

510.  A  Treaty  to  change  the  organization  of  the 
Government,  or  annihilate  its  sovereignty,  or  overturn 
its  Republican  form,  or  to  deprive  it  of  its  Constitu- 
tional powers,  would  be  void ;  because  it  would  de- 
feat the  will  of  the  People,  which  it  was  designed  to 
fulfil. 

511.  A  Treaty,  in  its  general  sense,  is  a  compact 
entered  into  with  a  foreign  Power,  and  extends  to  all 
matters  which  are  usually  the  subject  of  compact  be- 
tween independent  nations. 

512.  It  is,  in  its  nature,  a  contract,  and  not  a  Le- 
gislative act ;  and  does  not  generally  effect,  of  itself, 
the  objects  purposed  to  be  accomplished  by  conclud- 
ing it ;  but  requires  to  be  carried  into  execution  by 
some  subsequent  act  of  sovereign  power  by  the  con- 
tracting parties,  especially  in  cases  where  it  is  intend- 
ed to  operate  within  their  respective  territories, 


CHAP.  II.  TREATIES.  137 

513.  In  the  United  States,  however,  it  is  settled 
by  a  decision  of  the  Supreme  Court,  that  as  the  Con- 
stitution declares  a  Treaty  to  be  the  "  Law  of  the 
Land,"  it  is  to  be  regarded  in  Courts  of  Justice  as 
equivalent  to  a  Legislative  Act,  whenever  it  operates 
of  itself,  without  the  aid  of  any  Legislative  provi- 
sion. 

514.  But  when  the  terms  of  the  stipulation  import 
an  executory  contract,  the  Treaty  refers  for  its  exe- 
cution to  the  political,  and  not  to  the  Judicial  depart- 
ment of  the  Government ;  and  Congress  must  pass  a 
Law  in  execution  of  the  contract,  before  it  can  be- 
come a  rule  for  the  Courts. 

515.  The  Constitution  does  not  distinctly  declare 
whether  Treaties  are  to  be  held  superior  to  Acts  of 
Congress,  or  whether  Laws  are  to  be  co-equal  or 
superior  to  Treaties ;  but  the  representation  held  forth 
to  foreign  Powers  is,  that  the  President,  by  and  with 
the  consent  of  the  Senate,  has  power  to  bind  the  Na- 
tion in  all  legitimate  compacts ;  and  if  pre-existing 
Laws,  contrary  to  a  Treaty,  could  be  abrogated  only 
by  Congress,  this  representation  would  be  fallacious. 

516.  The  immediate  operation  of  a  Treaty  must 
therefore  be,  to  overrule  all  existing  Legislative  Acts 
incompatible  with  its  provisions;   as  otherwise  the 
public  faith  would  be  subjected  to  just  imputation  and 
reproach,  and  all  confidence  in  the  national  engage- 
ments would  be  destroyed. 

517.  This  is  not  inconsistent  with  the  power  of 
Congress  to  pass  subsequent  Laws,  qualifying,  alter- 
ing, or  wholly  annulling  a  Treaty ;  for  such  an  autho- 
rity, in  certain  cases,  is  supported  on  grounds  wholly 
independent  of  the  power  of  making  Treaties,  and  is 
incident  to  the  power  of  declaring  war. 


138  FOREIGN  INTERCOURSE.  PART  II. 

518.  The  exercise  of  such  a  right  may  become  ne- 
cessary to  the  public  welfare  and  safety,  from  mea- 
sures of  the  party  with  whom  the  Treaty  was  made, 
contrary  to  its  spirit,  or  in  open  violation  of  its  letter  ; 
and  on  such  grounds  alone  can  this  right  be  recon- 
ciled, either  with  the  provisions  of  the  Constitution, 
or  the  principles  of  public  Law. 

519.  All  Treaties,  as  soon  as  finally  ratified  by  the 
competent  authorities,  become  of  absolute  efficacy  ; 
and  as  long  as  they  continue  in  force,  are  obligatory 
upon  the  whole  Nation. 

520.  If  a  Treaty  require  the  payment  of  money  to 
carry  it  into  effect,  and  the  money  can  only  be  raised 
or  appropriated  by  an  Act  of  the  Legislature,  the  ex- 
istence of  the  Treaty  renders  it  morally  obligatory 
on  Congress  to  pass  the  requisite  Law;   and  its  re- 
fusal to  do  so,  would  amount  to  a  breach  of  the  public 
faith,  and  afford  just  cause  of  war. 

521.  That  department  of  the  Government,  which 
is  entrusted  by  the  Constitution  with  the  power  of 
making  "Treaties,  is  competent  to  bind  the  National 
faith  at  its  discretion  ;  for  the  power  to  make  Trea- 
ties must  be  co-extensive  with  the  national  exigencies, 
and  necessarily  involves  in  it  every  portion  of  the 
national  sovereignty,  of  which  the  co-operation  may 
be  necessary  to  give  effect  to  negotiations  and  con- 
tracts with  foreign  Nations. 

522.  If  a  Nation  confer  on  its  Executive  depart- 
ment, without  reserve,  the  right  of  treating  and  con- 
tracting with  other  Sovereignties,  it  is  considered  as 
having  invested  it  with  all  the  power  necessary  to 
make  a  valid  contract ;  and  that  it  is  competent  to 
alienate  the  public  domain  and  property  by  Treaty  ; 
because  that  department  is  the  organ  of  the  Nation 


CHAP.  II.  TREATIES.  139 

in  making  such  contracts ;  and  such  alienations  are 
valid,  because  they  are  made  by  the  deputed  assent 
of  the  Nation. 

523.  The  fundamental  Laws  may  withhold  from 
the  Executive  department  the  power  of  alienating 
what  belongs  to  the  State ;  but  if  there  be  no  express 
provision  to  that  effect,  the  inference  is,  that  the  Con- 
stitution has  confided  to  the  department  charged  with 
the  power  of  making  Treaties,  a  discretion  commen- 
surate with  all  the  great  interests  and  necessities  of 
the  Nation. 

524.  A  power  to  make  Treaties  of  Peace,  neces- 
sarily implies  a  power  to  settle  the  terms  on  which 
they  shall  be  concluded ;   and  foreign  States  could 
not  deal  safely  with  the  Government,  upon  any  other 
presumption. 

525.  That  branch  of  the  Government,  which  is 
entrusted  thus  generally  with  authority  to  make  valid 
Treaties  of  Peace,  must,  of  course,  have  power  to 
bind  the  Nation  by  the  alienation  of  part  of  its  ter- 
ritory, whether  that  territory  be  already  in  the  oc- 
cupation of  the  enemy,  or  remain  in  possession  of 
the  Nation,  or  whether  the  property  be  public  or  pri- 
vate. 

526.  Individual  rights  acquired  by  war,  and  vested 
rights  of  the  citizens,  may  be  surrendered  by  Treaty 
for  national  purposes,  as  it  is  a  clear  principle  of  Na- 
tional Law,  that  private  rights  may  be  sacrificed  for 
the  public  safety ;  but  the  Government  is  bound  to 
make  compensation  and  indemnity  to  the  individuals 
whose  rights  are  surrendered  for  the  public  benefit. 

527.  Treaties  of  every  kind,  when  made  by  the 
competent  authority,  are  not  only  to  be  observed  with 


140  FOREIGN  INTERCOURSE.  PART  II, 

the  most  scrupulous  good  faith,  but  are  to  receive  a 
fair  and  liberal  interpretation  ;  and  their  meaning  is 
to  be  ascertained  by  the  same  rules  of  construction 
which  are  applied  to  the  interpretation  of  private 
contracts. 

528.  If  a  Treaty  should  be,  in  fact,  violated  by  one 
of  the  contracting  parties,  by  proceedings  incompa- 
tible with  its  nature,  or  by  an  intentional  breach  of 
of  any  of  its  articles,  it  rests  with  the  injured  party- 
alone  to  pronounce  it  broken.  • 

529.  The  Treaty  in  such  cases  is  not  absolutely 
void,  but  voidable  at  the  election  of  the  injured  party  ; 
and  unless  he  choose  to  consider  it  void,  it  remains 
obligatory,  as  he  may  either  waive  or  remit  the  in- 
fraction, or  demand  a  just  satisfaction. 

530.  But  the  violation  of  any  one  article,  is  a  vio- 
lation of  the  whole  Treaty ;  for  all  the  articles  are 
dependent  on  each  other,  each' of  them  is  deemed  a 
condition   of  the  rest ;  and  the  breach  of  a  single 
article  overthrows  the  Treaty,  if  the  injured  party  so 
elect. 

531.  This  consequence  may,  however,  be  prevent- 
ed by  an  express  provision  in  the  Treaty  itself,  that 
if  one  article  be  broken,  the  others  shall  nevertheless 
continue  in  full  force ;  and  in  such  a  case  it  would 
not  be  competent  for  Congress  to  annul  the  Treaty 
on  the  ground  of  the  breach  of  a  single  article. 

532.  The  annulling  of  a  Treaty  by  an  Act  of  the 
Legislative  Power  under  the  circumstances  in  which 
such  a  measure  is  justifiable,  or  its  termination  by 
war,   does  not  divest   rights  of  property    acquired 
under  it;  nor  do  Treaties  in  general  become   ipso 
facto  extinguished  by  war  between  the  parties :  those 


CHAP.  II.       REGULATION  OF  FOREIGN  COMMERCE.        141 

articles  which  stipulate  for  a  permanent,  arrangement 
of  territorial  and  other  national  rights,  are  at  most 
suspended  during  the  war,  and  revive  at  the  peace, 
unless  waived  by  the  parties,  or  new  or  repugnant 
arrangements  are  made  in  a  new  Treaty. 

533.  The  Power  to  regulate  Commerce  with  foreign 
Nations,  is  intimately  connected  with  that  of  con- 
cluding Treaties,  especially  with  those  of  Commerce 
and  Navigation  ;  and  its  exercise  is  with  equal  propri- 
ety submitted  to  the  National  Government. 

534.  From  the  very  nature  of  this  power,  it  must 
be  exclusive  ;  for  if  the  several  States  had  retained 
the  right  of  regulating  their  own  Commerce  with  fo- 
reign Nations,  each  of  them  might  have  pursued  a 
different  system  ;  mutual  jealousies,  rivalries,  restric- 
tions, and  prohibitions  would   have  ensued,  which  a 
common  superior  alone  could  prevent,  and   at  the 
same  time  command  by  its  authority  that  confidence 
of  foreign  Nations  which  is  necessary  to  the  negotia- 
tion of  foreign  Treaties. 

535.  The  general  power  of  Congress  to  regulate 
Commerce,  is  not  restricted  to  the  mere  buying  and 
selling,  or  exchanging,  of  merchandise  and  commo- 
dities, but  includes  Navigation,  as  well  as  commercial 
intercourse  in  all  its  branches,  and  extends  to  all  ves- 
sels by  whatsoever  force  propelled,  and  to  whatsoever 
purposes  applied. 

536.  The  word  "  Commerce,"  as  used  in  the  Con- 
stitution, must  have  been  understood,  at  its  adoption, 
to  include  "  Navigation  ;"  as  the  power  over  both,  in 
conjunction,  was  a  primary  object  in  forming  the  new 
Government ;   and  in  this  comprehensive  sense  the 
term  has  always  been  understood,  and  actually  inter- 
preted, both  by  the  Legislative  and  Judicial  depart- 
ments of  the  Government, 


142  FOREIGN  INTERCOURSE.        PART  II. 

537.  Unless  it  were  so  used  and  understood,  the 
National  Government  would  have  no  direct  power 
over  Navigation  ;  and  could  make  no  Laws  prescrib- 
ing the  requisites  to  constitute  "  American  Vessels," 
or  requiring  them  to  be  navigated   by  "  American 
Seamen ;"  which  powers  have  been  exercised  from 
the  commencement  of  its  action,  with  the  universal 
consent  of  the  States,  and  the  universal  understanding 
that  they  were  "commercial  regulations." 

538.  The  power  to  regulate  Commerce,  thus  un- 
derstood, extends   to  every  species  of  commercial 
intercourse  between  the  United  States  and  foreign 
Nations,  and  amongst  the  States  of  the  Union,  and 
the  Indian  tribes. 

539.  Although,  in  regard  to  the  several  States,  the 
power  was  not  intended  to  comprehend  that  Com- 
merce which  is  completely  internal,  yet,  in  regulating 
Commerce  with  foreign  Nations,  the  power  of  Con- 
gress, in  reference  to  that  subject,  is  not  limited  by 
the  jurisdictional  boundaries  of  a  State. 

540.  The  Commerce  of  the  United  States  with  fo- 
reign Nations,  is  the  Commerce  of  the  whole  Union  ; 
and  each  State  or  JDistrict  has  an  equal  right  to  par- 
ticipate  in  it,  by   means  of  the  navigable   streams 
which  penetrate  the  country  in  all  directions,  and 
pass  through  the  interior  of  almost  every  Stale  in  the 
Union. 

541.  The  power  of  Congress  to  regulate  foreign 
Commerce,  must  be  exercised  wherever  the  subject 
exists  ;  and  as  a  foreign  voyage  may  commence  and 
terminate  at  a  port  within  the  same  State,  this  power 
of  Congress  may  be  exercised  within  a  Slate. 

54*2.  The  power  to  prescribe  the  rule  by  which 


CHAP.  II.  REGULATION  OF  FOREIGN  COMMERCE.   143 

Commerce  is  to  be  governed,  like  all  other  powers 
vested  in  Congress,  is  complete  in  itself,  and  may  be 
exercised  to  its  utmost  extent,  without  any  limitations 
but  such  as  are  prescribed  in  the  Constitution. 

543.  As  none  of  the  restrictions  upon  the  powers 
of  Congress,  which  are  expressed  in  the  Constitution, 
affect  the  power  in  question  ;  and  as  the  sovereignty 
of  Congress,  though  limited  to  specific  objects,  is  ple- 
nary in  regard  to  those  objects  ;  the  power  over  Com- 
merce is  vested  in  the  Government  of  the  Union,  as 
absolutely  as  it  would  exist  in  the  Government  of  a 
single  State,  if  the  Union  had  not  been  formed,  and 
the  State  Constitution  had  contained  no  further  re- 
strictions on  the  Legislative  Power  than  are  contain- 
ed in  the  Constitution  of  the  United  States. 

544.  The  discretion  and  wisdom  of  Congress, 'the 
identity  of  its  members  with  the  People  of  the  seve- 
ral States,  their  dependence  on  their  constituents,  and 
their  responsibility  for  misconduct  in  office,  are  in 
this  case,  as  in  many  others,  the  only  restraints  upon 
which  the  community  has  relied  to  secure  it  from 
the  abuse  of  the  power  ;  and  these  comprehend  all 
the  securities  upon  which  the  People  must  often  of 
necessity  rely  in  a  Representative  Government. 

545.  The  power  of  Congress  then  comprehends 
Navigation  within  the  limits  of  every  State  in  the 
Union,  so  far  as  that  Navigation  may  be  in  any  man- 
ner- connected  with  "  Commerce  with  foreign  Na- 
tions, or  among  the  several  States,  or  with  the  Indian 
tribes." 

546.  Although  the  individual  States  are  important 
parts  of  the  Federal  system,  and  have  retained  a 
concurrent  power  of  Legislation  over  many  subjects 
of  National  jurisdiction  ;  yet  when  a  State  proceeds 


144  FOREIGN  INTERCOURSE.  PART  II. 

to  regulate  any  but  its  purely  internal  Commerce,  it 
exercises  the  identical  power  which  is  granted  to  the 
Union,  and  does  the  very  thing  which  Congress  alone 
is  authorized  to  do. 

547.  As  the  power  of  Congress  to  regulate  Com- 
merce extends  to  Navigation  carried  on  in  vessels 
exclusively  employed  in  carrying  passengers,  whether 
propelled  by  steam,  or  by  the  instrumentality  of  wind 
and  sails,  on  waters  wholly  within  a  State,  but  which 
are  navigable  from  the  ocean,  an  exclusive  privilege 
of  Steam  Navigation  upon  such  waters  claimed  under 
a  State,  was  judicially  held  to  conflict  with  an  au- 
thority to  navigate  the  same  waters,  derived  from 
the  Laws  of  Congress ;  and  so  far  as  this  interference 
extended,  the  State  Law  w7as  declared  void,  as  repug- 
nant to  the  Federal  Constitution. 

548.  As   the   power    of   regulating    Commerce 
reaches  the  interior  of  a  State,  and   may  there  be 
exercised,   it   is  capable  of  authorizing  the  sale  of 
those  commodities  which  it  introduces  ;  because  the 
efficacy  of  the  power  would  be  incomplete,  if  it  ceased 
to  operate  at  the  point  where  the  continuance  of  its 
operation  is  indispensable  to  its  value. 

549.  The  power  to  allow  importation  would  be 
nugatory,  if  unaccompanied  by  the  power  to  authorize 
the  sale  of  the  thing  imported  ;  for  sale  is  the  object 
of  importation,  and  an  essential   ingredient  in  that 
Commercial  intercourse  of  which  importation  con- 
stitutes a  part,  and  as  indispensable  to  the  existence 
of  that  intercourse,  as  importation  itself. 

550.  The  right  of  sale,  as  well  as  the  right  to  im- 
port, being  therefore  considered  as  involved  in  the 
power  to  regulate  Commerce,  Congress  has  a  right, 
not  only  to  authorize  importation,  but  to  authorize  the 
importer  to  sell. 


CHAP.  H.    REGULATION  OP  FOREIGN  COMMERCE.          145 

551.  An  Act  of  a   State  Legislature,  requiring 
wholsale  importers  and  sellers  of  foreign  goods  to 
obtain  a  licence  from  the  State,  and  to  pay  a  sum  of 
money  for  the  privilege  of  selling,  was  consequently 
held  to  be  void,  as  repugnant  not  only  to  that  provi- 
sion of  the  Constitution  which  restricts  a  State  from 
laying  duties  on  imports,  but  to  that  which  invests 
Congress  with  the  power  "to  regulate  Commerce." 

552.  The  power  to  regulate  foreign  Commerce 
extends  to  the  regulation  and  government  of  seamen 
on  board  merchant  ships  belonging  to  citizens  of  the 
United  States  ;  to  conferring  privileges  upon  ships 
built  and  owned  in  the  United  States ;  to  quarantine, 
pilotage,  and  embargo  Laws  ;  to  wrecks  of  the  seas ; 
the    construction   of   light-houses ;  the   placing  of 
buoys  and  beacons ;  the  removal  of  obstructions  to 
Navigation  in  creeks,  rivers,  sounds,  and  bays ;  to 
the  establishment  of  securities  to  Navigation  against 
inroads  of  the  ocean  ;  and  to  the  designation  of  par- 
ticular ports  of  entry  and  delivery  for  the  purposes 
of  foreign  Commerce. 

553.  The  regulation  of  Commerce  has  also  been 
employed  for  the  purposes  of  Revenue  ;  of  prohibi- 
tion, retaliation,  and  commercial  reciprocity ;  to  en- 
courage domestic  Navigation ;  and  to  promote  the 
shipping  and  mercantile  interests  by  bounties,  discri- 
minating duties,  and  special  preferences  ;  and  some- 
times to  regulate  intercourse  with  a  view  to  mere 
political  objects. 

554  It  seems  to  be  admitted  that  Congress  may 
incidentally,  in  its  arrangements  for  countervailing 
foreign  restrictions,  encourage  the  growth  of  domes- 
tic manufactures  ;  but  whilst,  on  the  one  hand,  it  is 
denied  that  Congress  has  a  right  permanently  to  pro- 
hibit any  importations  unreasonably  for  the  purpose 


146  FOREIGN  INTERCOURSE.  PART  II, 

of  fostering  an  interest  in  favour  of  which  it  has  no 
power  directly  to  interfere  ;  it  is  insisted,  on  the  other, 
that  Congress  does  possess  Constitutional  power  to 
encourage  and  protect  manufactures,  by  appropriate 
regulations  of  Commerce. 

555.  The  terms  of  the  Constitution,  in  relation  to 
this  power,  in  connection  with  the  power  of  laying 
and  collecting  duties,  are  supposed  to  be  sufficiently 
large  to  embrace  the  protection  of  domestic  industry ; 
and  both  powers  have  been  applied  in  practice  to 
the  encouragement  of  manufactures  as  well  as  of 
agriculture,  from  the  commencement  of   the   Go- 
vernment. 

556.  If  Congress  does  not  possess  the  power  to 
encourage  domestic  manufactures,  by  regulations  of 
Commerce,  that  power  must,  as  has  appeared,  be 
annihilated  for  the  whole  Union  ;  but  as  the  People 
of  the  several  States  have  made  a  voluntary  surren- 
der of  the  means  essential  to  the  exercise  of  that 
power,  it  seems  more  reasonable  to  conclude  that 
the  power  exists  in  the  National  Government,  than 
that  it  does  not  exist  at  all. 

557.  The  Power  of  pi ohibiting  the  importation  of 
Slaves  into  the  United  States  after  the  year  1808, 
and  of  imposing  an  intermediate  duty  on  their  impor- 
tation, is  included  in  the  power  to  regulate  Com- 
merce, as  the  restriction  which  postponed  its  exer- 
cise, arose  from  an  express  exception  in  the  grant  of 
the  general  power. 

558.  This  power  was  fully  exercised  by  Congress 
as  soon  as  the  limitation  permitted,  and  in  time  to 
afford  the  first  example  of  the  abolition  of  a  spe- 
cies of  traffic  which  had  long  been  the  opprobrium 
of  modern  policy ;  and  the  interdiction  has  been  fol- 


CHAP.  II.     OFFENCES  AGAINST  LAW  OF  NATIONS.         147 

lowed  up,  by  declaring  the  Slave  trade  piracy,  and 
rendering  it  punishable  with  death  when  pursued  by 
citizens  of  the  United  States. 

559.  The  Power^  to  define  and  punish  piracies  and 
felonies   committed   on    the  high   seas,   and   offences 
against  the  Law  of  Nations,  is  substantively  and  se- 
parately vested  in  Congress  ;  although,  as  to  the  for- 
mer objects,  it  seems  unavoidably  incident  to  the 
power  to  regulate  foreign  Commerce  ;  and  as  to  the 
latter  object,  it  might  be  implied  from  the  authority 
of  the  National  Government  to  declare  war  and  make 
Treaties. 

560.  The  power  to  define,  as  well  as  punish,  seems 
rather  applicable  to  felonies  and  offences  against  the 
Law  of  Nations,  than  to  piracies  ;    as  piracy  is  well 
defined  by  the  Law  of  Nations  to  be  robbery,  or  a  for- 
cible depredation  on  the  high  seas,  without  lawful  au- 
thority ;  and  by  thu  high  seas  is  understood  not  only 
the  ocean  out  of  sight  of  land,  but  waters  on  the  sea- 
coast  beyond  the  boundary  of  low  water  mark. 

561.  The  term  Felony,  in  relation  to  offences  on 
the  high  seas,  is  necessarily  indeterminate,  as  it  is  a 
term  of  rather  loose   signification   in  the  Common 
Law,  from  which  it  is  derived  ;  nor  is  it  used  in  the 
criminal  jurisdiction  of  the  Admiralty  Courts  in  the 
same  technical  sejise  it  bears  at  Common  Law. 

562.  Offences  against  the  Law  of  Nations  are  not 
completely  ascertained  and  defined  by  any  particular 
code  recognized  by  the  common  consent  of  Nations  ; 
so  that  with  respect  to  them,  as  well  as   to  felonies, 
there  was  a  peculiar  fitness  in  granting  to  Congress 
the  power  to  define,  as  well  as  to  punish. 

563.  In  executing  the  power  to  define  piracy,  it 


148  FOREIGN  INTERCOURSE.  PART  tt, 

was  not  necessary  for  Congress  to  insert  in  the  Sta- 
tute a  definition  of  the  crime  in  terms  ;  but  it  was 
sufficient  to  refer  for  its  definition  to  the  Law  of  Na- 
tions, as  it  is  there  defined  with  reasonable  certainty, 
and  does  not  depend  on  the  particular  provisions  of 
any  municipal  code,  either  for  its  definition  or  punish- 
ment. 

564.  Pirates  have  been  regarded  by  all  civilized 
nations  as  enemies  of  the  human  race,  and  the  most 
atrocious  violators  of  the  universal  law  of  society ; 
and  they  are  accordingly  every  where  punished  with 
death. 

565.  Every  Nation  has  a  right  to  attack  and  exter- 
minate pirates  without  a  declaration  of  war ;  for  al- 
though they  may  form  a  loose  and  temporary  asso- 
ciation amongst  themselves,  and  re-establish  in  some 
degree  those  laws  of  justice  which  they  have  vio- 
lated with  the  rest  of  the  world  ;  yet  they  are  not 
considered  as  a  National  body,  or  entitled  to  the  laws 
of  war  as  belonging  to  the  community  of  Nations. 

566.  Pirates  acquire  no  rights  by  Conquest  or  the 
Law  of  Nations  ;  and  the  municipal  Laws  of  every 
country  authorize  the  true  owner  to  reclaim  his  pro- 
perty taken  by  pirates,  wheresoever  it  can  be  found  ; 
for  those  Laws  do  not  recognize  any  title  to  be  de- 
rived from  an  act  of  piracy. 

567.  Congress  has  the  right  to  pass  laws  to  punish 
pirates,  though  they   be  foreigners,  and  may  have 
committed  no  particular  offence  against  the  United 
States  ;  and  for  the  purpose  of  giving  jurisdiction,  it 
is  of  no  importance  on  whom,  or  where,  a  piratical 
offence  has  been  committed. 

568.  In  executing  the  Power  of  providing  for  the 


CHAP.  II.  PIRACY.  149 

punishment  of  piracy,  as  defined  by  the  Law  of  Na- 
tions, Congress,  in  conformity  with  that  Law,  has 
declared  that  it  shall  be  death  ;  and  has,  moreover, 
enacted  that  if  any  person  concerned  in  any  particu- 
lar enterprize,  or  belonging  to  any  particular  crew, 
shall  land  and  commit  robbery  on  shore,  such  of- 
fender shall  be  adjudged  a  pirate ;  in  which  respect 
the  Statute  seems  also,  to  be  merely  declaratory  of 
the  Law  of  Nations. 

569.  Piracy  under  the  Law  of  Nations,  is  an  of- 
fence against  all  Nations,  and  punishable  by  all ;  and 
a  pirate,  who  is  such  by  that  law,  may  be  punished  in 
any  country  where  he  may  be  found  ;  but  the  muni- 
cipal Laws  of  any  country  may  declare  any  offence 
committed  on  board  its  own  vessels  to  be  piracy,  and 
it  will  be  punishable  exclusively  by  the  Nation  which 
passes  such  Statute. 

570.  The  Act  of  Congress,  by  which  certain  of- 
fences are  declared  to  be  piracy,  which  are  not  so  by 
the  Law  of  Nations,  was  intended  to  punish  them  as 
offences  against  the  United  States,  and  not  as  offences 
against  the  human  race  ;  and  such  an  offence,  com- 
mitted by  a  person  not  a  citizen  of  the  United  States, 
on  board  of  a  vessel  belonging  exclusively  to  subjects 
of  a  foreign  State,  is  not  piracy  under  the  Statute,  or 
punishable  in  the  Courts  of  the  United  States. 

571.  The  offence  in  such  cases  must  be  left  to  be 
punished  by  the  Nation  under  whose  flag  the  vessel 
sails,  and  whose  particular  jurisdiction  extends  to  all 
on  board  ;  for  it  is  a  clear  and  settled  principle,  that 
the  jurisdiction  of  every  Nation  extends  to  its  own 
citizens,  on  board  of  its  own  public  and  private  ves- 
sels at  sea. 

572.  But  murder  or  robbery  committed  on  the 


150  FOREIGN  INTERCOURSE.  PART  II- 

high  seas,  by  persons  on  board  of  a  vessel  not  at  the 
time  belonging  to  any  foreign  power,  but  in  posses- 
sion of  a  crew  acting  in  defiance  of  all  law,  and  ac- 
knowledging obedience  to  no  Government,  is  within 
the  act  of  Congress,  and  punishable  in  the  Courts  of 
the  United  States. 

573.  For  although  the  Statute  does  not  apply  to 
offences  committed  against  the  particular  sovereignty 
of  a  foreign  power,  and  on  board  of  a  vessel  belong- 
ing at  the  time,  in  fact  as  well  as  of  right,  to  a  subject 
of  a  foreign  State,  and  in  virtue  of  such  property  sub- 
ject to  his  control ;  yet  it  extends  to  all  offences  com- 
mitted against  all  Nations,  by  persons  who,  by  com- 
mon consent,  are  equally  amenable  to  the  Laws  of  all 
Nations. 

574.  In  pursuance  of  this  principle,  the  moment  a 
vessel  assumes  a  piratical  character,  she  loses  all 
claim  to  National  character,  whatever  it  may  have 
been ;  and  the  crew,  whether  citizens  or  foreigners, 
are  equally  punishable  under  the  Statute  for  acts  de- 
clared by  it  to  be  piracy. 

575.  The  Laws  of  Congress  declare  those  acts  pi- 
racy in  a  citizen  of  the  United  States  when  commit- 
ted on  a  citizen,  which  would  only  be  belligerent  acts 
if  committed   on  a  foreigner ;  and  a  citizen  of  the 
United  States,  who  offends  against  the  Government 
or  its  citizens,  under  colour  of  a  foreign  commission, 
is  punishable  in  the  same   manner  as  if  he  had  no 
commission. 

576.  The  acts  of  an  alien,  under  the  sanction  of  a 
national  commission,  may  be  hostile,  and  his  Govern- 
ment responsible  for  them,  but  they  are  not  regarded 
as  piratical ;  and  this  rule  extends  to  the  Barbary 
Powers,  who  are  now  regarded  as  lawful  Powers, 
and  not  as  pirates. 


CHAP.  II.  FELONIES  ON  THE  HIGH  SEAS.  151 

577.  Felony,  when  committed  on  the  high  seas, 
in  effect  amounts  to  piracy ;  and  has,  to  a  considera- 
ble extent,  been  so  declared  by  Congress ;  who,  in 
pursuance  of  the  authority  vested  in  them  by  the  Con- 
stitution, have  enacted  that  any  person  on  the  high 
seas,  or  in  any  open  roadstead  or  bay,  where  the  sea 
ebbs  and  flows,  committing  the  crime  of  robbery,  in 
and  upon  any  vessel,  or  its  crew  or  lading,  shall  be 
adjudged  a  pirate. 

478.  The  power  to  define  and  punish  piracy  and 
felonies  on  the  high  seas,  is  exclusive  in  its  nature  ; 
but  it  has  been  doubted  whether  the  power  to  punish 
other  offences  against  the  Law  of  Nations,  ought  to 
be  considered  as  exclusively  vested  in  Congress,  on 
the  ground  that  the  Law  of  Nations  forms  a  part  of 
the  Common  Law  of  every  State  of  the  Union,  and 
violations  of  it  may  be  committed  on  land,  as  well  as 
at  sea. 

579.  The  jurisdiction  of  the  several  States  is,  how- 
ever, superseded  in  regard  to  those  offences  against 
the  Law  of  Nations  which  are  committed  at  sea ;  but 
it  does  not  seem  necessarily  to  follow,  that  it  is  also 
superseded  in  regard  to  those  which  are  committed 
on  shore. 

580.  Offences  of  the  latter  description  are  of  va- 
rious kinds,  and  the  power  to  define  and  punish  them 
is  with  great  propriety  given  to  Congress ;  and  so  far 
as  they  have  been  denned  by  the  Acts  of  Congress, 
they  may  be  said  to  arise  under  the  Constitution  and 
Laws  of  the  United  States,  and  to  be  finally,  if  not 
exclusively,  cognizable  under  their  authority. 

581.  But  there  are  some  such  offences  which  are 
not  enumerated  in  the  Acts  of  Congress ;  and  if  the 
doctrine  be  sound,  that  the  criminal  jurisdiction  of 


152  FOREIGN  INTERCOURSE,  PART  II. 

the  Union  is  confined  to  cases  expressly  provider!  for 
by  Congress,  either  those  violations  of  the  JLaw  of 
Nations  of  this  description,  of  which  the  punishment 
remains  unprovided  for  by  Congress,  must  go  unpu- 
nished, or  the  State  Courts  must  entertain  jurisdic- 
tion of  them. 

582.  The  United  States  being  alone  responsible  to 
foreign  Nations  for  all  that  affects  their  mutual  inter- 
course, it  rests  with  the  National  Government  to  de- 
clare what  shall  constitute  offences  against  the  Law 
regulating  that  intercourse,  and  to  prescribe  suitable 
punishments  in  case  of  their  commission. 

583.  But  if  cases  arise  for  which  no  provision  has 
been  made  by  Congress,  both  the  National  and  State 
Courts,  within  the  spheres  of  their  respective  juris- 
dictions, are  thrown  upon  those  general  principles 
which,  being  enforced  by  other  Nations,  those  Na- 
tions have  a  right  to  require  to  be  applied  and  enforc- 
ed in  their  favour. 

584.  The  offences  falling  more  immediately  under 
the  cognizance  of  the  Law  of  Nations,  are,  besides 
piracy,  violations  of  Safe  Con  ducts,  and  infringements 
of  the  rights  of  Ambassadors  and  other  foreign  Minis- 
ters. 

585.  A  safe  conduct,  or  passport,  contains  a  pledge 
of  the  public  faith  that  it  shall  be  duly  respected, 
the  preservation  of  which  is  essential  to  the  character 
of  the  Government ;  and  Congress,  in  furtherance  of 
the  general  sanction  of  public  Law,  has  provided 
that  persons  violating  safe  conducts  shall  be  subject 
to  fine  and  imprisonment. 

586.  The  same  punishment  is  provided  for  persons 
who  infringe  the  Law  of  Nations,  by  offering  vio- 


CHAP.  III.      PROHIBITION  OP  SLAVE  TRADE.  153 

lence  to  Ambassadors,  or  other  public  Ministers ;  or 
by  being  concerned  in  prosecuting  or  arresting  them  ; 
and  the  process  whereby  their  persons,  or  those  of 
their  domestics,  may  be  imprisoned,  or  their  goods 
seized,  is  declared  void. 

587.  The  policy  of  these  Laws  regards  such  pro- 
ceedings against  foreign  Ministers  as  highly  injurious 
to  a  free  and  liberal  communication  between  differ- 
ent Governments,  and  mischievous  in  their  conse- 
quences to  any  Nation  ;  as  they  tend  to  provoke  the 
resentment  of  the  Sovereign  whom  the  Minister  re- 
presents, and  to  bring  upon  the  country  in  which  he 
resides  the  calamity  of  war. 

588.  The  Slave  trade  is  now  considered  as  a  pirati- 
cal trade,  not  indeed  as  absolutely  prohibited  by  the 
Law  of  Nations,  but  condemned  as  such  by  our  own 
Law,  and  the  Laws  of  several  other  civilized  Na- 
tions, as  well  as  by  the  general  principles  of  justice 
and  humanity. 


CHAPTER  III. 

OF  THE  POWERS  VESTED  IN  THE  GENERAL  GOVERNMENT, 
FOR  THE  MAINTENANCE  OP  HARMONY  AND  PROPER  IN- 
TERCOURSE AMONGST  THE  STATES. 

589.  The  authority  vested  in  the  General  Govern- 
ment, for  the  maintenance  of  harmony  and  proper 
intercourse  amongst  the  States,  includes  the  particular 
restraints  on  the  authority  of  the  States,  and  certain 
powers  vested  in  the  Judicial  department.  But  the 
former  are  reserved  for  a  distinct  head  of  considera- 
tion, and  the  latter  have  already  been  reviewed  in 
examining  the  structure  and  organization  of  the  Go- 
vernment. 


154  INTERCOURSE  AMONGST  THE  STATES.     PART  IT* 

590.  The  remaining  Powers  comprehended  under 
this  head,  are  the  following,  viz : 

1.  "To  regulate  Commerce  amongst  the  several 

States,  and  with  the  Indian  tribes." 

2.  "  To  establish  post-offices  and  post-roads." 

3.  "  To   coin   money ;    to   regulate   the   value 

thereof;  and  to  fix  the  standard  of  weights 
and  measures." 

4.  "  To  provide  for  the  punishment  of  counter- 

feiting the  securities  and  public  coin  of  the 
United  States." 

5.  "  To  establish  an  uniform  rule  of  naturaliza- 

tion throughout  the  United  States." 

6.  "  To  establish  uniform  rules  on  the  subject  of 

bankruptcies ;"  and, 

7.  "  To  prescribe,  by  penal  Laws,  the  manner 

in  which  the  public  acts,  records,  and  ju- 
dicial proceedings  of  each  State  shall  be 
proved,  and  the  effect  they  shall  have  in 
other  States." 

591.  Without  the  supplemental  power  to  regulate 
Commerce  amongst  the  States,  the  primary  and  indis- 
pensable  power  of  regulating  foreign  Commerce, 
would  have  been  incomplete  and  ineffectual. 

592.  A  material  object  of  this  power  was  to  se- 
cure those  States  which  import  and  export  through 
other  States,  from  unjust  contributions  levied  on  them 
by  the  latter  ;  for,  had  the  several  States  been  left  at 
liberty  to  regulate  the  trade  between  each  other,  ar- 
ticles of  produce  and  merchandize  might  have  been 
subjected,  during  their  transit,  to  duties  which  would 
eventually  have  fallen  on  the  growers  or  manufac- 
turers of  the  one,  and  the  consumers  of  the  other. 

593.  The  Power  "  to  regulate  Commerce  among 
the  several  States,"  does  not  extend  to  that  Com- 


CHAP.  III.       INTERNAL  COMMERCE.  155 

merce  which  is  completely  internal ;  and,  compre- 
hensive as  are  the  terms  in  which  it  is  conferred,  it 
is,  nevertheless,  restricted  to  that  Commerce  which 
concerns  more  States  than  one. 

594.  For  the  genius  and  character  of  the  Govern- 
ment evince  that  its  action  is  to  be  applied  to  all  the 
external  concerns  of  the  Nation,  and  to  the  internal 
concerns  which  affect  the  States  generally  ;  but  not 
to  those  which  are  completely  within  a  State,  which 
do  not  affect  other  States,  and  with  which  it  is  not 
necessary  to  interfere  for  the  purpose  of  executing 
any  of  the  general  powers  of  the  National  Govern- 
ment. 

595.  The   completely  internal  Commerce   of  a 
State  is  therefore  reserved  for  the  State  itself;  but 
as  the  power  of  Congress,  in  regulating  foreign  Com- 
merce, does  not  stop  at  the  jurisdictional  lines  of  the 
States,  so  the  power  to  regulate  Commerce  amongst 
the  States,  is  not  limited  by  State  boundaries. 

596.  For,  not  only  do  waters  communicating  with 
the  ocean  penetrate  into  the  interior,  and  pass  in  their 
course  through  the  several  States  ;  but  in  many  cases 
there  are  waters  in  and  upon  the  boundaries  of  seve- 
ral of  the  States,  which,  though  not  navigable  to  the 
sea,  afford  means  of  Commercial  intercourse  between 
those  States,  and  furnish  occasions  to  Congress  for 
the  exercise  of  the  power  in  question. 

597.  This  power  may  be  exercised  wherever  the 
subject  exists  ;  and  if  the  means  of  Commercial  in- 
tercourse exist  within  a  State  ; — if,  for  instance,  a 
coasting  voyage  may  commence  or  terminate  within 
a  State,  then  the  power  of  Congress  to  regulate  Com- 
merce amongst  the  States,  may  be  exercised  within 
a  State. 


156  INTERCOURSE  AMONGST  THE  STATES.    PART  II. 

598.  As  the  States  which  join  each  other,  are  se- 
parated merely  by  a  mathematical  line,  a  trading 
expedition  between  them  cannot  commence  and  ter- 
minate without  the  limits  of  either;  and  as  other 
States  lie  between  two  States  remote  from  each  other, 
a  trading  intercourse  between  the  latter,  must  com- 
mence in  one,  terminate  in  another,  and  pass  through 
at  least  a  third. 

599.  Hence  Commerce  amongst  the  States  must 
of  necessity  be  Commerce  within  the  States ;  and  in 
the  regulation  of  the  Indian  trade,  the  action  of  the 
Law  is  chiefly  within  individual  States  ;  whilst  in  this 
case,  as  well  as  with  respect  to  Commerce  amongst 
the  States,  the  power  of  Congress  being  co-exten- 
sive with  the  subject  on  which  it  acts,  cannot  be 
stopped  at  the  external  boundary  of  the  State,  but 
must  enter  its  limits,  and  be  exercised  within  its  ter- 
ritorial jurisdiction. 

600.  The  power  of  Congress  to  regulate  Com- 
merce among  the  States,  extends  to  regulating  Navi- 
gation, and  to  the  coasting  trade  and  fisheries  within 
as  well  as  without  any  State,  wherever  they  are  con- 
nected with  the  Commercial  intercourse  with  any 
other  State,  or  with  foreign  Nations. 

601.  It  extends  also  to  the  regulation  and  govern- 
ment of  seamen  ;  to  conferring  privileges  upon  ves- 
sels engaged  in  the  coasting  trade  ;  and  to  the  navi- 
gation of  vessels  engaged  solely  in  carrying  passen- 
gers, as  well  as  of  those  engaged  in  traffic,  whether 
propelled  by  steam  or  otherwise. 

602.  The  principles  upon  which  a  State  Law,  re- 
quiring importers  and  venders  of  foreign  goods  to 
obtain  a  licence  from  the  State  Government,  was 
declared  repugnant  to  the  Constitution  of  the  United 


in.  INTERNAL  COMMERCE.  157 

States,  were  held  to  apply  equally  to  a  similar  in- 
terference with  importations  from  one  State  to  ano- 
ther. 

603.  Although  the  power  of  a  State  to  regulate  its 
purely  internal   Commerce,  and  establish   its   own 
police  to  control  and  promote   that   trade,  and  to 
guard  the  health  and  safety  of  its  citizens,  are  un- 
doubted ;  yet  neither  these,  nor  any  other  acknow- 
ledged State  powers,  can,  consistently  with  the  Fede- 
ral Constitution,  be  so  used  as  to  obstruct  or  defeat 
the  power  of  Congress  to  regulate  Commerce  among 
the  States. 

604.  Nevertheless,  if  measures  within  the  power 
of  State  Legislation  do  not  come  into  actual  collision 
with  the  powers  of  the  General   Government  over 
navigable   streams   within    a    State,    the    National 
Codrts  can  take  no  cognizance  of  these  measures  or 
their  effects,  where  there  has  been  no  legislation  of 
Congress,  with  which  the  operation  of  the  State  Law 
could  interfere. 

605.  The  power  of  Congress  to  regulate   Com- 
merce with  the  Indian  tribes  is  to  be  construed  in 
the  same  manner;  and  it  extends  equally  to  tribes 
living  within,  or  without,  the  boundaries  of  particular 
States  ;  or  within,  or  without,  the  territorial  limits  of 
the  United  States  ;  and  the  trade  with  them,  in  all  its 
forms,  is  subject  exclusively  to  the  regulation  of  Con- 
gress. 

606.  The  Indian  territory  within  the  United  States 
composes  a  part  of  the  Union  ;  and  in  the  intercourse 
between  the  General  government  and  foreign  Na- 
tions, in  commercial  regulations,  and  in  any  attempt 
at  intercourse  between  foreign  Nations  and  the  In- 
dian inhabitants,  they  are  considered  as  within  the 

O 


158        INTERCOURSE  AMONGST  THE  STATES.        PART  II, 

jurisdictional  limits  of  the  United  States,  and  subject 
to  many  of  those  restraints  which  are  imposed  by  the 
latter  on  their  own  citizens. 

607.  These   Indians  acknowledge  themselves  in 
their  Treaties   to   be  under   the   protection   of  the 
United   States,  and  admit  that  the  Government  of 
the  Union  shall  have  the  sole  and  exclusive  right  of 
regulating  the  trade  with  them,   and  managing  all 
their  affairs  as  it  shall  think  proper. 

608.  The  tribes  thus  residing  within  the  acknow- 
ledged boundaries  of  the  Union,  are  not  deemed  fo- 
reign Nations  within  the  meaning  of  the  Constitution, 
but  are  considered  as  domestic  dependent  Nations, 
occupying  a  Territory  to  which  the  United  States 
assert  a  title,  which  must  take  effect  when  the  right 
of  occupancy  of  the  Indians  ceases  ;  and  in  the  mean 
time,  they  are  in  a  state  of  pupilage  to  the  General 
Government. 

609.  They  are  considered  by  foreign  Nations,  as 
well  as  by  the  Federal  Government,  as  so  complete- 
ly under  the  dominion  of  the  United  States,  that  any 
attempt  to  form  a  political  connection  with  them,  or 
to  acquire  their  lands,  would  be  considered  as  an  act 
of  hostility,  and  an  invasion  of  the  Territory  of  the 
United  States. 

610.  They  are  distinguished  in  the  Constitution  by 
an  appropriate  name  from  foreign  Nations,  as  well  as 
from  the  several   States  composing  the  Union;  and 
the  objects  to  which  the  power  of  regulating  Com- 
merce  may  be   directed,  are  divided  into  distinct 
classes,  according  to  that  distinction. 

611.  The  principle  adopted  for  determining  the 
respective  rights  of  the  Maritime  powers  of  Europe, 


CHAP.   in.        REGULATION  OF  THE   INDIAN  TRADE.        159 

upon  their  discovery  of  different  parts  of  the  Ameri- 
can Continent  was,  that  discovery  gave  a  title  to  the 
Government  by  whose  subjects,  or  by  whose  autho- 
rity, it  was  made,  which  might  be  consummated  by 
possession. 

612.  The  admission  of  this  principle  gave  to  the 
Nation  making  a  discovery,  the  sole  right  of  acquiring 
the    soil,  and   of  making  settlements  upon  it ;  and 
whilst  the  principle  itself  shut  out  the  right  of  com- 
petition amongst  those  who  agreed  to  it,  it  could  not 
annul  the  previous  rights  of  those  who  were  not  par- 
ties to  its  adoption. 

613.  It   regulated  the   right   givep   by  discovery 
amongst  the  European  discoverers,  but  did  not  af- 
fect the  rights  of  those  already  in  possession,  either 
as  aboriginal  occupants,  or  as  occupants  by  virtue  of 
a  discovery  before  the  memory  of  man  ;  and  in  giving 
on  exclusive  right  to  purchase,  it  did  not  found  that 
right  on  a  denial  of  the  right  of  the  possessor  to  sell. 

614.  The  relation  between  the  Europeans  and  the 
Natives,  was  determined,  in  every  case,  by  the  par- 
ticular Government  which  asserted  and  could  main- 
tain this  pre-emptive  privilege,  in  the  particular  place  ; 
and  the  United  States  succeeded  to  all  the  claims  of 
the  antecedent  Governments,  both  territorial  and  po- 
litical ;  but  no  attempt  has  been  made  to  enlarge  them. 

615.  So  far  as  those  claims  existed  merely  in  theo- 
ry, or  were  in   their  nature  exclusive  only  of  the 
claims  of  other  Nations,  they  still  retain  their  original 
character,  and  continue  dormant ;  but  so  far  as  they 
have  been  practically  exerted,  they  exist  in  fact,  are 
understood  by  both  parties,  and  have  frequently  been 
asserted  by  the  one,  and  admitted  by  the  other. 

616.  The  general  Law  of  European  Sovereigns 


160        INTERCOURSE  AMONGST  THE  STATES.        PART  Jf» 

respecting  their  claims  in  America,  limited  the  inter- 
course of  the  Indians,  in  a  great  degree,  to  the  parti- 
cular potentate  whose  ultimate  right  of  domain  was 
acknowledged  by  the  others  ;  and  the  consequence 
was,  that  their  supplies  were  chiefly  derived  from 
that  Nation,  and  their  trade  confined  to  it. 

617.  Goods  indispensable  to  their  comfort,  were 
received  from  the  same  source,  in  the  shape  of  pre- 
sents ;  and  the  strong  arm  of  Government  was  inter- 
posed to  restrain  the  disorderly  and  licentious  from 
intrusions  into  their  country,  from  encroachments  on 
their  lands,  and  from  those  acts  of  violence  which 
were  often  attended  with  reciprocal  murder. 

618.  In  this  protection  the  Indians  perceived  only 
what  was  beneficial  to  themselves ;  as  it   involved 
practically  no  claim  on  their  lands,  and  no  dominion 
over  their  persons ;  but  merely  bound  them  to  the 
European  Nation  before  the  Revolution,  as  it  has 
since,  to  the  Federal  Government,  as  dependent  allies, 
claiming  the   protection   of  a   powerful  friend  and 
neighbour,  and  receiving  the  advantages  of  that  pro- 
tection, without  its  involving  a  surrender  of  their  Na- 
tional character. 

619.  Congress  has  from  time  to  time  passed  Laws 
to  regulate  trade  and  intercourse  with  the  Indians, 
which  treat  them  as  Nations,  respect  their  rights,  and 
manifest  a  purpose  to  afford  that  protection  to  them 
for  which  Treaties  stipulate  ;  which  Laws,  and  espe- 
cially the  Acts  now  in  force,  consider  the  several  In- 
dian Nations  as  distinct  political  communities,  having 
territorial  boundaries,  within  which  their  authority  is 
exclusive. 

620.  The  Treaties  and  Laws  of  the  United  States 
contemplate  the  Indian  territory  as  completely  se^a- 


CHAP.  III.          POST  OFFICES  AND  POST  ROADS.  161 

rated  from  that  of  the  States  ;  and  provide  that  all 
intercourse  with  them  shall  be  carried  on  exclusively 
by  the  Government  of  the  Union  ;  whilst  the  powers 
of  Congress  to  regulate  Commerce,  to  declare  war, 
make  peace,  and  conclude  Treaties,  comprise  all  that 
is  required  for  regulating  intercourse  with  the  In- 
dians. 

621.  The  Power  to  establish  Post  Offices  and  Post 
Roads,  is  necessarily  connected  with  the  regulation  of 
Commerce,  and  the  promotion  of  the  general  wel- 
fare ;  as  a  regular  system  of  free  and  speedy  inter- 
communication is  not  only  of  importance  to  the  mer- 
cantile interests,  but  of  great  general  benefit. 


This  power  is  exclusive,  so  far  as  it  relates  to 
the  conveyance  of  letters  ;  but  not  in  regard  to  Post 
roads,  as  it  would  be  unnecessary  for  Congress  to 
make  another  road  where  a  sufficient  one  lor  the  pur- 
pose already  existed  ;  whilst,  on  the  other  hand,  no 
State  has  power  to  deny  or  obstruct  the  passage-of 
the  mail  over  its  public  roads. 

6*33.  The  power  of  Congress,  in  relation  to  this 
subject,  was  brought  into  operation  soon  after  the 
Constitution  was  adopted  ;  and  various  provisions,  in 
regard  to  Post  Offices  and  the  conveyance  of  letters 
and  other  articles  by  mail,  have  been  enacted  at  dif- 
ferent times,  founded  on  the  principle  of  the  power's 
being  exclusive  as  to  those  objects. 

624.  Under  this  power,  in  conjunction  with  the 
powers  to  raise  money  to  provide  for  the  general 
welfare,  and  to  pass  all  laws  necessary  and  proper 
for  carrying  into  execution  the  powers  vested  in  the 
General  Government,  funds  have  from  time  to  time 
been  set  apart  by  Congress  for  internal  improvements 
in  the  several  States  by  means  of  roads  and  canals; 


162  INTERCOURSE  AMONGST  THE  STATES.     PART  IT* 

625.  The  Cumberland  road  was  constructed  under 
a  covenant  with  the  State  of  Ohio,  that  a  portion  of 
the  proceeds  of  public  lands  lying  within  that  State, 
should  be  applied  to  the  opening  of  roads  leading  to 
it,  with  the  consent  of  the  States  through  which  the 
road  might  pass. 

626.  But  after  the  expenditures   upon  that  road 
had  exceeded  the  proceeds  of  the  lands  appropriat- 
ed for  its  construction,  bills  passed  by  both  houses 
of  Congress  at  different  times,  appropriating  funds  for 
continuing  it,  as  well  as  subsequent  bills  for  similar 
objects,  were  severally  objected   to   by  successive 
Presidents  of  the  United  States,  and  eventually  lost 
upon  their  return  with  the  objections  to  Congress. 

'  627.  The  Executive  Department  denied  on  those 
occasions,  any  such  Constitutional  power  in  Congress 
as  the  respective  Bills  assumed  to  exist ;  or  that  such 
power  could  be  vested  in  the  National  Legislature, 
by  the  Act  of  a  State  consenting  to  its  exercise. 

628.  Congress,  however,  still  claim  the  power  to 
lay  out,  construct,  and  improve  Post  roads  and  Mili- 
tary roads,  with  the  assent  of  the  States  through 
which  they  pass,  as    well   as  to   construct  Canals 
through  the  several  States,  for  promoting  and  secur- 
ing internal  Commerce,  and  for  the   more  safe  and 
economical  transportation   of  troops  and   military 
stores  in  time  of  war  ;  leaving  the  jurisdictional  right 
over  the  soil  to  the  respective  States. 

629.  By  an  Act  passed  with  the  assent  of  the  Ex- 
ecutive in   1824,  the  necessary  surveys,  plans,  and 
estimates,  were  authorized  to  be  made  of  such  roads 
and  canals,  as  the  President  might  deem  of  national 
importance,  or  necessary  for  the  transportation  of 
the  public  mail ;  and  a  large  sum  of  money  was  ap- 


CHAP.  III.      COINING  AND  VALUE  OF  MONEY.  163 

propriated  from  the  Treasury  for  defraying  the  ex- 
pences  incurred  by  the  execution  of  this  Law. 

630.  But  in  the  year  1830  a  Bill  passed  by  both 
Houses  appropriating  a  sum  of  money  from  the  Trea- 
sury as  a  Subscription  to  the   Stock  of  a  Turnpike 
road  exclusively  within  a  State,  was  returned  with 
objections  by  the  President,  and  was  finally  lost  in 
the  House  of  Representatives,  in  which  it  had  origi- 
nated. 

631.  The  objections  of  the  President  to  this  par- 
ticular appropriation  were  founded  on  the  principle 
that  Congress  were  not   authorized  to   appropriate 
money  to  any  other  objects  than  such  as  were  in- 
cluded  amongst  the   enumerated  powers  vested  in 
the  National  Government ;  and   he,  moreover,  con- 
sidered that  the  work  proposed  to  be  aided  did  not 
fall  within  any  of  those  powers,  as  it  was  of  a  local 
and  State,  and  not  of  a  general  and  national  charac- 
ter. 

632.  This  distinction   seems  conformable  to  the 
principle  already  stated,  that  "the  action  of  the  Ge- 
neral Government   may  be  applied  to  all  the  exter- 
nal concerns  of  the  Nation,  and  to  those  internal  con- 
cerns which  affect  the  States  generally  ;  but  not  to 
those  which  are  completely  within  a  particular  State, 
which  do  not  affect  other  States,  and  with  which  it 
is  not  necessary  to  interfere  for  the  purpose  of  exe- 
cuting any  of  the  general  powers  of  the  Govern- 
ment." 

633.  The  Power  "  to  coin  money,  and  to  regulate 
the  -value  thereof,  and  of  foreign  coins"  is  rendered 
exclusive  by  a  subsequent  provision  of  the  Constitu- 
tion prohibiting  the  individual  States  from  its  exer- 
cise ;  whilst  the  power  "  of  fixing   the  Standard  of 


*£W 


164  INTERCOURSE  AMONGST  THE  STATES.    PART  If, 

weights  and  measures"  seems  also,  for  the  sake  of 
uniformity,  proper  for  the  exclusive  exercise  by  Con- 
gress ;  but  as  they  have  not  legislated  on  this  sub- 
ject, it  is  presumed  that,  until  they  do,  each  State  re- 
tains the  right  of  adopting  and  regulating  its  own 
standard. 

634.  The  power  of  coining  money  is  one  of  the 
ordinary  prerogatives  of  Sovereignty,  and  is  almost 
universally  exercised  in  order  to  preserve  a  proper 
circulation  of  good  coin  of  a  known  value  ;  and  to 
secure  it  from  debasements,  it  is  necessary  that  it 
should  be  exclusively  under  the  control  and  regula- 
tion of  the  Government. 

635.  The  object  of  vesting  this  power  in  Con- 
gress, was  to  produce  uniformity  of  value  throughout 
the  Union,  and  it  is  obvious  that  the  exclusive  pos- 
session of  this  power  by  the  General  Governmentf 
could   alone  secure  a  wholesome  and  uniform  Na- 
tional currency ;  and  prevent  the  embarrassments, 
vexations,  and  frauds,  which  the  varying  standards 
and  regulations  of  the  different  States  would  intro- 
duce in  the  course  of  trade. 

636.  The   Power  of  Congress  "  to  provide  for  the 
punishment  of  counterfeiting  the  public  securities  and 
current  coin  of  the  United  States  "  necessarily  follows 
the  powers  to  borrow  money  and  regulate  the  coin  j 
as,  without  this,  the  preceding  powers  would  be  devoid 
of  any  adequate  sanction. 

637.  This  Power  seems  to  be  exclusive  of  that  of 
the  States,  as  it  is  an  appropriate  means  afforded  by 
the  Constitution  to  carry  into  effect  other  delegated 
powers  not  antecedently  existing  in  the  States ;  yet 
it  appears  to  be  taken  for  granted  by  the  Acts  of 
Congress  relative  to  the  offences  in  question,  that 


CHAP.  HI.      PUNISHMENT  OF  COUNTERFEITING.  165 

cognizance  of  them  may,  under  certain  cireumstan* 
ces,  be  concurrently  exercised  by  the  State  Courts. 

638.  The  Power  "  to  establish  an  uniform  system  of 
Naturalization?  is  necessarily  exclusive,  especially  as 
it  is  provided  in  a  subsequent  part  of  the  Constitution, 
that  "  the  Citizens  of  each  State  shall  be  entitled  to 
all  the  privileges  and  immunities  of  Citizens  in  tho 
several  States  ;"  and  accordingly  this  power  has  been 
judicially  held  to   be  exclusive,  on  the  ground  of  its 
direct  repugnancy  or  incompatibility  with  the  exer- 
cise of  a  similar  power  by  the  States. 

639.  The  Constitution  contains  no  definition  of  the 
character  of  a  Citizen  ;  but  the  term  is  used  in  plain 
reference  to  the  Common  Law,  which  is  regarded 
not  only  as  the  means  or  instrument  of  exercising  the 
jurisdiction   conferred  by  the   Constitution,  but  in 
many  instances  must  be  resorted  to  as  the  interpreter 
of  its  meaning. 

640.  At  the  time  the  Constitution  was  adopted, 
the  Citizens  of  each  State,  collectively,  constituted 
the  Citizens  of  the  United  States  ;  and  were  either 
Native   Citizens,  or   those   born   within   the  United 
States,  or  naturalized  Citizens,  or  persons  born  else- 
where, but  who,  upon  assuming  the  allegiance,  had 
become  entitled  to  the  privileges,  of  native  Citizens. 

641.  All  who  were  resident  Citizens  at  the  time  of 
the  Declaration  of  Independence,  and  deliberately 
yielded  to  that  measure  an  express  or  implied  sanc- 
tion, became  parties  to  it,  and  are  to  be  considered  as 
natives  ;  their  social  tie  being  coeval  with  the  Nation, 
itself, 

642.  All  persons  born  within  the  Colonies  whilst 
t  to  the  British  Crown,  were  natural-born  Bri^ 


166  INTERCOURSE  AMONGST  THE  STATES.     PART  II, 

tish  subjects  ;  and  it  necessarily  follows,  that  this  cha- 
racter was  changed  by  the  separation  of  the  Colonies 
from  the  parent  State,  and  the  subsequent  acknow- 
ledgment of  their  independence.- 

643.  The  rule,  as  to  the  point  of  time  at  which 
Americans  born  before  the  separation,  ceased  to  be 
British  subjects,  differs  in  the  United  States  and  in. 
England  ;  that  established  by  the  Courts  in  England 
adopts  the   date   of  the  Treaty  of  Peace  in   1783, 
whilst  the  Federal  tribunals  have  fixed  upon  the  date 
of  the  Declaration  of  Independence. 

644.  The  settled  doctrine  in  the  United  States  is, 
that  a  person  who  left  the  country  before  the  Decla- 
ration of  Independence,  and  never  returned,  thereby 
became  an  Alien  ;  and,  as  a  general  rule,  the  charac- 
ter in  which  Americans  born  before  the  Revolution 
are  to  be  considered^  depends  on  the  situation  of  the 
party,  and  the  election  made  by  him,  at  the  Decla- 
ration of  Independence,  according  to  our  rule,  and 
at  the  Treaty  of  Peace,  according  to  the  British  rule, 

645.  Difficulties  have   occurred  in  cases  where 
rights  have  accrued  between  these  dates  ;  but  if  the 
right  of  election  be  admitted  at  all,  it  must  be  deter- 
mined by  what  took  place  during  the  Revolution,  and 
between  the  Declaration  of  Independence  and  the 
Treaty  of  Peace. 

646.  It  is  the  doctrine  of  the  English  Law,  that 
natural-born  subjects  owe  an  allegiance  which  is  in- 
trinsic and  perpetual,  and  cannot  be  divested  by  any 
act  of  their  own  ;  but  it  is  a  question  which  has  been 
frequently  and  gravely  debated  in  the  Courts,  whether 
this  doctrine  applies  in  its  full  extent  to  the  United 
States. 

647.  The  best  writers  upon  public  Law,  although 


CHAP.  HI.  NATURALIZATION.  167 

they  treat  the  subject  somewhat  loosely,  seem  gene- 
rally to  favour  the  right  of  the  Citizen  to  emigrate 
and  abandon  his  native  country,  unless  there  be  some 
positive  restraint  by  Law,  or  he  is  at  the  time  in  pos- 
session of  some  public  trust,  or  his  country  be  in  dis- 
tress or  at  war,  and  in  need  of  his  services. 

648.  The  principle  declared  in  some  of  the  State 
Constitutions,  that  the  Citizens  have  a  natural  and  in- 
herent right  to  emigrate,  amounts  to  a  renunciation 
by  those  States,  of  the  English  Common  Law,  as  be- 
ing repugnant  to  the  natural  liberty  of  mankind  ;  pro- 
vided emigration  is  intended  in  those  cases  to  be  used 
as  synonymous  with  expatriation. 

619.  But  the  allegiance  of  Citizens  of  the  United 
States,  is  due  not  only  to  the  local  Governments  un- 
der which  they  reside,  but  primarily  to  the  General 
Government,  which  alone  affords  them  National  pro- 
tection ;  and  the  doctrine  of  final  and  absolute  expa- 
triation, although  frequently  discussed,  remains  yet  to 
be  finally  settled  in  the  Courts  of  the  United  States. 

650.  This  doctrine,  however,  is  not  applied  by  the 
British  Courts  to  Americans  born  before  the  Revolu- 
tion, as  the  Treaty  of  Peace  is  deemed  a  release  from 
their  allegiance,  of  all  British  subjects,  who  remained 
in  this  country. 

651.  As  the  British  doctrine  is,  that  Americans 
born    before   the   Revolution,  by  remaining  in  the 
United  States  after  the  Treaty  of  Peace,  lost  their 
character  as  British  subjects  ;  so  the  American  doc- 
trine is,  that  by  withdrawing  from  the  country,  and 
adhering  to  the  British  Government  after  the  Decla- 
ration of  Independence,  they  lost,  or  rather  never  ac- 
quired, the  character  of  American  Citizens. 


168          INTERCOURSE  AMONGST  THE  STATES.     4>ARt  H. 

652.  All  persons  born  out  of  the  jurisdiction  of  the 
United  States,  are  termed  Aliens  ;  but  there  are  some 
exceptions   to  this  rule,  derived   from  the  ancient 
English  Law  ;  as  in  the  case  of  children  of  public 
Ministers  born  abroad,  whose  parents  owed  not  even 
a  local   allegiance  to  the  foreign   power;   and   all 
children  born  abroad  of  English  parents,  were  con- 
sidered as  natives  of  England,  if  the  father  went  and 
continued  abroad  in  the  character  of  an  English  sub- 
ject. 

653.  By  the  existing  Law  of  the  United  States 
relative  to  Naturalization,  it  is  declared,  that  the  chil- 
dren of  persons  who  were,  or  had  been,  Citizens  of 
the  United   States  at  the  time  of  passing  the  Act, 
should,  though  born  out  of  the  United  States,  be  con- 
sidered as  Citizens  ;  but  that  the  right  should  not  de- 
scend to  persons  whose  fathers  had  never  resided 
within  the  United  States. 

654.  Aliens  coming  to  the  United  States,  with  the 
intention  of  permanently  residing  therein,  have  many 
inducements  to  become  Citizens,  as  they  are  incapa- 
ble, until  naturalized,  of  possessing  a  stable  interest  in 
lands  in  many  of  the  States,  or  of  holding  any  civil 
office,  or  of  voting  at  elections,  or  taking  any  active 
share  in  the  administration  of  the  General  or  State 
Governments. 

655.  A  convenient  and  easy  mode  has  been  pro- 
vided by  Congress  for  removing  the  disabilities  of 
Aliens  ;  and  the  terms  on  which  every  Alien,  being  a 
free  white  person,  can  obtain  the  qualifications  and 
privileges  of  a  natural -born  Citizen,  are  prescribed  in 
the  several  Acts  of  Congress  relative  to  the  subject. 

656.  The  rights  of  Aliens  to  the  privilege  of  Natu- 
ralization are,  by  these  Laws,  submitted  to  the  deci- 


•CiTAP.  III.  BANKRUPTCY.  169 

sion  of  Courts  of  Record ;  and  a  person  duly  na- 
turalized, becomes  entitled  to  all  the  privileges  and 
immunities  of  a  natural-born  Citizen,  except  that  a 
residence  of  seven  years  is  requisite  to  enable  him  to 
hold  a  seat  in  Congress,  and  that  he  is  not  eligible  to 
the  office  of  President  of  the  United  States,  or  of 
Governor  in  several  of  the  States. 

657.  The  Power  of  Congress  "  to  establish  uniform 
Lazos  on  the  subject  of  Bankruptcies"  is  intimately 
connected  with  the  regulation  of  Commerce ;  and 
there  are  peculiar  reasons  why  the  National  Govern- 
ment should  be  entrusted  with  this  power,  arising 
from  the  importance  of   preserving  uniformity  and 
equality  of  rights  amongst  the  citizens  of  all  the  States, 
and  of  maintaining  commercial  credit  and  intercourse 
w.ith  foreign  Nations. 

658.  Under  Governments  which  authorize  perso- 
nal arrests  and  imprisonments  for  debts,  it  has  been 
found  necessary  to  provide  for  the  relief  of  debtors, 
in  cases  of  inevitable  misfortune  ;  and  especially  in 
the  case  of  insolvent  merchants,  who,  from  the  habits 
and  nature  of  trade,  are  under  the  necessity  of  giving 
and  receiving  credit,  and  of  encountering  extraordi- 
nary hazards. 

659.  Bankrupt  and  Insolvent  Laws,  besides  reliev- 
ing the  debtor,  are  intended  to  secure  the  application 
of  his  effects  to  the  payment  of  his  debts ;  and  the 
distinction  between  them  is  not  so  clearly  marked  as 
to  determine  with  positive  precision  what  belongs 
exclusively  to  the  one  or  to  the  other  species  of  these 
Laws. 

660.  Bankruptcy,  in  the  English  Law,  has  by  long 
and  settled  usage  received  an  appropriate  meaning  ; 
and  has  been  considered  applicable  only  to  unfortu- 
nate traders,  who  do  certain  acts  which  afford  evi- 

P 


170  INTERCOURSE  AMONGST  THE  STATES.    PART  II. 

dence  of  their  intention  to  avoid  the  payment  of  their 
debts  ;  or  of  their  inability  to  discharge  them. 

661.  It  has  been  said  that  Insolvent  Laws  are  such 
as  merely  liberate  the  person  of  the  debtor,  whilst 
Bankrupt  Laws  discharge  him  from  his  contracts ; 
but  this  distinction  is  not  supported  by  any  uniformity 
of  legislation,  and  it  is  the  more  difficult  to  discrimi- 
nate  between  them,  because   Bankrupt  Laws   fre- 
quently contain  those  regulations  which  are  generally 
found  in  Insolvent  Laws,  and  Insolvent  Laws  some, 
that  are  usual  in  Bankrupt  Laws. 

662.  Although  Bankrupt  Laws  are  generally  and 
•properly  confined  in  their  operation  to  the  trading 
classes,  who  are  most  exposed  to  pecuniary  vicissi- 
tudes, yet,  as  misfortune  and  poverty  may  also  over- 
take those  who  pursue  other  occupations,  the  latter 
are  not  excluded  from  the  protection  of  the  State  LeT 
gislatures, 

663.  Nor  ought  traders  or  their  creditors  to  be  left 
without  means  of  relief,  in  case  Congress  do  not  in 
their  discretion  think  proper  to  exercise  the  power 
vested  in  them  relative  to  Bankruptcy  ;  and  according- 
ly this  power  is  held  not  to  exclude  the  right  of  the 
States  to  legislate  on  the  subject,  except  when  the 
power  has  been  actually  executed  by  Congress. 

664.  The  power  of  Congress  to  establish  uniform 
Laws  on  the  subject  of  Bankruptcy,  is  not  granted  in 
such  terms,  nor  are  its  nature  and  character  such  as 
require  that  it  should  be  exercised  exclusively  by 
Congress ;  consequently  a  State  has  a  right  to  pass 
either  Bankrupt  or  Insolvent  Laws,  provided  there  be 
no  Act  of  Congress  in  force  establishing  a  uniform 
system  of  Bankruptcy,  with  which  the  State  Law 

conflict. 


CHAP.  IH.  PROOF  AND  EFFECT  OF  STATE  RECORDS. 


171 


665.  But  the  power  of  the  States  does  not  extend 
to  passing  Bankrupt  or  Insolvent  Laws  which  dis- 
charge the  obligation  of  antecedent  contracts  ;  for,  un- 
der the  restriction  contained  in  the  Constitution,  a 
State  Law  can   discharge  such  contracts   only   as 
were  made  subsequently  to  its  enactment,  within  the 
State  and  between  its  own  citizens,  and  it  does  not 
extend  to  contracts,  although  made  within  the  State, 
if  made  with  a  citizen  of  another  State  ;  nor  to  any 
contract,  by  whomsoever   made,  if  made  in  other 
States  or  foreign  countries. 

666.  The  Legislature  of  the  Union  possesses  the 
power  of  enacting  Bankrupt  Laws,  and  the  State  Le- 
gislatures of  enacting  Insolvent  Laws ;  and  a  State 
has,  moreover,  authority  to  pass  a  Bankrupt  Law 
when  no  Act  of  Congress  exists  on  the  subject  with 
which  the  State  Law  might  conflict.     But  whether 
Congress  legislate  on  the  subject  or  not,  no  Bank- 
rupt, Insolvent,  or  other  Law  passed  by  a  State,  is 
permitted  by  the  Federal  Constitution  "  to  impair  the 
obligation  of  Contracts." 

667.  Although  Congress  has  heretofore  exercised 
the  power  vested  in  it  relative  to  the  subject,  yet  its 
former  Bankrupt  Laws  were  suffered  to  expire  by  their 
own  limitation  ;  and  at  present  there  is  no  uniform  sys- 
tem of  Bankruptcy  in  operation  in  the  United  States. 

668.  The  power  of  Congress  "  to  prescribe,1*'  in  its 
discretion,  "  by  general  Laws,  the  manner  in  which  the 
public  acts,  records,  and  judicial  proceedings  of  each 
State  shall  be  proved,  and  the  effect  they  shall  have  in 
other  States"  has  been  found,  as  was  intended,  a  con- 
venient instrument  of  justice,  and  particularly  bene- 
ficial on  the   borders  of  contiguous  States,  where 
persons  and  effects  liable  to  judicial  process,  may  be 
suddenly  and  clandestinely  removed  to  a  foreign  ju- 
risdiction. 


172  MISCELLANEOUS  POWERS.  PART  it- 

669.  The  clause  vesting  this  power  previously  de- 
clares that  "  full  faith  and  credit  shall  be  given  in  each 
State,  to  the  public  acts,  records,  and  judicial  pro- 
ceedings of  every  other  State  ;"  and  the  Act  passed 
by  Congress  in  execution  of  this  power,  not  only 
prescribes  the  manner  of  authentication,  but  declares 
that  when  so  authenticated,  they  "  shall  have   such 
faith  and  credit  given  to  them  in  every  Court  within 
the  United  States,  as  they  have  by  Law  or  usage  in 
the  Courts  of  the  State  from  whence  they  are  taken." 

670.  The  Common  Law  gives  to  the  Judgments 
of  the  Courts  of  one  State  the  effect  of  prima  facie 
evidence,  or  evidence  open  to  impeachment,  expla- 
nation, or  contradiction,  in  the  Courts  of  every  other 
State  ;  but  the  Constitution  contemplates,  and  Con- 
gress have  executed,  a  further  power  of  giving  a  con- 
clusive effect  to  such  judgments  as  evidence  admit- 
ting neither  of  impeachment,  explanation,  or  contra- 
diction, in  the  Courts  of  every  other  State,  provided 
they  have  that  effect  in  the  State  in  which  they  am 
rendered. 


CHAPTER  I\r. 

OF  THE  POWERS  VESTED  IN  THE  FEDERAL  GOVERNMENT, 
RELATIVE  TO  CERTAIN  MISCELLANEOUS  OBJECTS  OF  GE- 
NERAL UTILITY. 

671.  The  Powers  vested  in  the  Federal  Govern- 
ment, in  relation  to  certain  Specified  objects  of  ge- 
neral utility,  comprehend 

I.  A  Power  "  to  promote  the  progress  of  Sci- 
ence and  the  useful  Arts,  by  securing,  for 
limited  times,  to  authors  and  inventors,  the 
exclusive  right  to  their  writings  and  disco- 
veries." 


CHAP.  IV.  PROMOTION  OF  SCIENCE.  173 

• 

672.  Before  the  American  Revolution,  the  right 
of  property  of  authors  and  inventors  in  their  inven- 
tions and  discoveries,  was  made  a  question  in  Eng- 
land ;  and  it  was  finally  settled  by  a  Judgment  of  the 
House  of  Lords,  reversing  an  almost  unanimous  de- 
cision of  the  Court  of  King's  Bench,  that  this  right 
had  no  foundation  in  the  Common  Law. 

673.  Even  those  Judges  in  the  Court  below,  who, 
reasoning  upon  different  principles,  arrived  at  the  op- 
posite conclusion,  seem  to  have  been  perplexed  with 
the  indefinite  nature  of  such  a  right,  and  embarrassed 
by  the  consequences  of  admitting  it. 

674.  To  deprive  men  of  genius  of  the  right  to  the 
profits  of  invention  was,  on  the  one  hand,  discourage 
ing  to  the  useful  arts,  and  injurious  to  the  progress 
of  learning  and  science  ;  whilst,  on  the  other  hand,  an 
unlimited  right  to  the  exclusive  enjoyment  of  the 
fruits  of  genius  and  discovery,  although  for  a  time  it 
might  stimulate   both,  would,  in  its   consequences, 
levy  a  perpetual  tax  on  posterity,  and  impede  the 
progress  of  invention  itself. 

675.  Yet,  to  deny  to  inventors  the  fair  profits  de- 
rivable from  their  talents  and  exertions,  seemed  to 
be  at  variance  with  the  dictates  of  natural  justice  and 
liberal  policy,  as  it  was,  in  effect,  to  deny  to  genius  its 
appropriate  reward  ;  and  to  withhold  from  the  pow- 
ers of  intellect,  one  of  the  strongest  stimulants  to 
their  activity. 

676.  The  existing  Statute,  enacted  in  the  reign  of 
Queen  Anne,  limiting  the  rights  of  authors  and  in- 
ventors to  a  term  of  years,  was  regarded  as  a  com- 
promise by  which  their  claims  were  acknowledged, 
their  rights  defined  and  protected,  and  their  reward 
secured  ;  whilst  a  public  interest  was  effectually  cre- 
ated, and  its  benefit  transmitted  to  posterity. 


174  MISCELLANEOUS  POWERS.  PART  IIV 

677.  With  this  Statute,  and  this  decision  before 
them,  and  with  a  full  knowledge  of  the  principles  and 
policy   on   which  both   were  founded,  the  several 
States  ceded  to  Congress  the  power  "  to  promote 
the  progress  of  Science  and  the  useful  Arts,  by  se- 
curing, for  limited  times,  to  authors  and  inventors  the 
exclusive  right  to  their  writings  and  discoveries.'' 

678.  The  English  Law  had  limited  the  right  to  a 
term  of  years  ;  the  Power  ceded  by  the  Federal  Con- 
stitution was  to  secure  it  for  limited  times  ;  the  for- 
mer restricting  the  right  to  a  definite  term  ;  the  lat- 
ter adopting  the  same  principle,  but  leaving  the  quan- 
tum of  interest  to  the  discretion  of  Congress. 

679.  In  execution  of  this  power,  several  Acts  have 
been  passed  by  Congress,  and  are  now  in  force,  de- 
fining the  times  for  which  the  exclusive  rights  of  au- 
thors and  inventors  to  their  respective  writings  and 
discoveries,  shall   be  enjoyed,  and  securing  them  in 
sucli   enjoyment   for  different    periods  in  different 
cases. 

680.  The  object,  therefore,  of  this  provision  of  the 
Constitution,  and  of  the  Laws  enacted  under  it,  was 
twofold ;  first,  to  secure  to  inventors  and  authors  a 
reward  for  their  genius,  by  granting  them  an  exclu- 
sive privilege  for  limited  times  ;  and  secondly,  to  se- 
cure to  the  public  the  benefit  of  their  inventions,  by 
bringing  the  property  in  them   into  the   common 
stock,  after  the  expiration  of  the  exclusive  grant. 

681.  This  double  object  can  only  be  effected  by 
such  a  construction  of  the  Constitution  as  will  leave 
to  Congress  the  exclusive  power  of  legislation  on  the 
subject  -r  although  it  has  been  held  in  some  of  the 
State  Courts  that  the  power  is  concurrent  and  may 
t>e  exercised  by  the  State  legislatures,  provided  their 
laws  do  not  contravene  the  Acts  of  Congress. 


CHAP.  IV.  PROMOTION  OP  SCIENCE. 


175 


682.  Prior  to  the  adoption  of  the  Federal  Consti*- 
ttition,  legislative  Acts  in  favour  of  valuable  discove- 
ries and  improvements  had  been  passed  in  some  of 
the  States ;  but  their  efficacy  being  confined  to  the 
respective  limits  of  those  States,  the  privileges  they 
conferred  were  of  little  value ;  and  it  was  provided 
in  the  first  Act  of  the  National  legislature,  in  relation 
to  the  subject,  that  the  applicant  for  the  benefit  of  the 
national  protection,  should  surrender  his  right  under" 
any  State  Law, 

683.  Hence  it  seems  to  have  been  supposed  that* 
Congress  could  not  effectually  secure  the  exclusive1 
rights  of  authors  and  inventors,  without  the  exercise 
of  an  exclusive  power  of  legislation  on  the  subject ; 
and  the  necessity  of  such  a  power  was  an  adequate 
reason   for  vesting  it  in  the  paramount  authority  of 
the  Union. 

684.  The  power  under  consideration  falls  under 
that  class  of  cases,  in  which  the  exercise  of  a  similar 
power  by  the  States  would  be  repugnant  and   con- 
tradictory to  the  power  vested  in  Congress  ;  and  in 
relation  to  its  particular  objects,  the  power  of  Con- 
gress seems  to  be  necessarily  exclusive,  both  from 
the  terms,  and  the  nature,  of  the  grant. 

685.  The  power  of  Congress  being  to  secure  the 
exclusive  rights  of  authors  and  inventors  for  limited 
times,  a  concurrent  power  in  a  State  over  the  sub- 
ject, must  arise  from  the  unceded  portion  of  its  sove- 
reignty, and  must  consequently  be  a  power  -without 
limit  of  time  ;  but  Congress  could  not  secure  to  the 
inventor  for  a  limited  time,   the   enjoyment  of  that 
which  a  State  might  grant  to  another  forever. 

686.  The  power  of  Congress  seems,  moreover,  to 
be  exclusive,  in  this  case,  from  the  nature  of  the  grant  f 


176-  MISCELLANEOUS  POWERS.  PART  II. 

because  if  each  of  the  States  have  a  concurrent  right, 
its  exercise  by  them  would  defeat  the  twofold  object 
of  the  grant ;  which  was  to  secure  to  the  public  the 
benefit  and  transmission  of  invention,  as  well  as  to 
reward  authors  and  inventors  for  their  productions 
and  discoveries. 

687.  If  the  individual  States  have  a!  concurrent 
power  with  the   United  States,  it  is   evident  that 
neither  of  those  objects  can  be  secured  by  Congress,- 
for  if  Congress  prescribe  fourteen  years  as  the  limit 
of  exclusive  rights,  and  render  them  common  at  the 
expiration  of  that  period  ;  each  State  might  fix  a  dif- 
ferent period,  or  might  secure  a  right  of  property  to 
authors  or  inventors  without  limitation  of  time  ;  or 
might  reduce  the  term  of  exclusive  enjoyment  to  a 
minimum,  or  even  declare  their  writings  and  disco- 
veries to  be  common  property. 

688.  If  a  State  in  the  exercise  of  any  of  the  inde- 
pendent powers  of  legislation  retained  by  it,  comes4 
into  collision  with  this  power  of  Congress,  and  privi- 
leges granted  by  the  respective  authorities  of  a  State, 
and  of  the  Union  come  into  actual  conflict,  and  are 
found  repugnant  or  irreconeileable  with  each  other, 
the  State  Law,  or  the  right  or  privilege  claimed  under 
it,  must,  as  in  other  cases  of  collision,  yield  to  the  su> 
perior  power  of  Congress.- 

680.  As  a  coasting  licence  not  only  ascertains  the1 
National  character  and  the  ownership  of  the  vessel,, 
but  confers  a  right  of  Navigation  ;— and  as  a  right  to1 
import  goods  involves  the  right  to  sell  them  ?  so  a 
Patent  or  a  Copyright  not  only  ascertains  the  title  of 
the  Patentee  as  an  inventor  or  an  author,  but  con- 
fers on  him  a  paramount  right  of  using,  and  vending 
to  others  to  use,  his  discoveries  or  writings. 

690*  There  is  this  distinction,  however,  between 


CHAP.  IV.  PROMOTION  OP  SCIENCE. 

the  property  which  an  author  may  have  in  his  wri- 
tings, and  that  which  an  inventor  may  have  in  his 
discoveries,  that  the  former  has  no  beneficial  property 
whatever  in  his  works  independent  of  what  may  be 
derived  from  their  sale  ;  whilst  an  inventor  may, 
in  a  very  restricted  sense,  use  his  invention  for  pur- 
poses of  profit. 

691.  To  both  authors  and  inventors,  a  right  of  sale 
is  nevertheless  indispensable,  though  more  manifestly 
so  in  the  first  case  than  in  the  last ;  as  every  other 
subject  of  property  may  be  partially  enjoyed,  although 
the  right  of  sale  be  restricted  or  forbidden  ;  but  the 
right  of  property  of  authors  and  inventors  is  so  es- 
sentially connected  with  the  right  of  sale,  that  the 
inhibition  of  that  right  annihilates  the  whole  subject. 

692.  Accordingly  the  Acts  of  Congress  passed  in 
virtue  of  this  constitutional  power,  secure  to  an  au- 
thor, or  his  assignee,  "  the  sole  right  and  liberty  of 
printing,  reprinting,  publishing  and  vending"  his  work; 
and  to  a  Patentee,  "  the  full  and  exclusive  right  and 
liberty  of  making,  constructing,  using,  and  vending  to 
others  to  be  used,"  his  invention  or  discovery,  within 
the  times  limited  for  the  enjoyment  of  their  respective- 
privileges. 

693.  A  State  may  prohibit  the  use  of  any  partietK 
lar  invention  as  noxious  to  the  health,  injurious  to  the 
morals,  or  in  any  respect  prejudicial  to  the  welfare  of 
its  citizens  ;  but  the  Government  of  the  Union  must 
possess  exclusively  the  power  of  determining  whether 
an  invention  for  which  a  Patent  is  sought,  be  useful  or 
pernicious,  i.  e.  whether  it  be  one  for  which  a  Patent 
ought  to  be  granted. 

694.  As  the  object  of  the  constitutional  power  o£ 
Congress  is  the  promotion  of  the  useful  Arts,  an  in*- 


178 


MISCELLANEOUS  POWERS.  PART  II. 


vention  useless  or  pernicious  would  not  be  a  proper 
subject  for  its  exercise  ;  but  should  a  Patent  for  such 
an  invention  have  unadvisedly  been  issued,  the  Na- 
tional authority  may  repeal  the  Patent,  and  interdict 
the  use  of  the  noxious  discovery. 

695.  If  a  thing  in  itself  pernicious,  be  patented, 
the  Patentee  could  recover  no  damages  for  the  viola- 
tion of  his  right ;  as  his  Patent  would  confer  no  right 
of  property :  and  if  a  patented  invention  be  useful  in 
itself,  but  the  art  or  manufacture  to  which  it  relates, 
be  injurious  in  its  exercise  to  the  public  health,  the 
Patent  would  afford  no  protection  for  the  nuisance  ; 
because  private  interests  must  in  all  cases  yield  to 
the  public  good — and  not  because  the  Federal  power 
is  superseded  or  controlled  by  the  State  Laws. 


So  if  the  author  of  an  immoral  or  libelous 
book  prosecute  for  the  invasion  of  his  Copyright,  he 
could  recover  no  indemnity ;  and  if  prosecuted  for 
his  offence  against  the  State  Law  in  issuing  such  a 
publication,  the  authority  of  the  United  States  would 
not  protect  him  ;  because,  in  the  one  case,  his  Copy- 
right would  invest  him  with  no  right  of  property  ;  and 
in  the  other,  would  convey  no  right  to  use  his  property 
to  the  injury  of  others. 

697.  Restrictions  imposed  by  State  Laws,  which 
are  general  in  their  operation,  and  not  confined  to' 
Patentees  or  authors,  in  no  sense  derogate  from  the 
exclusive  power  of  Congress  to  promote  the  progress 
of  Science  and  the  useful  Arts. 

698.  But  a  construction  of  the  Constitution,  ad- 
mitting that  the  States,  in  the  exercise  of  an  absolute 
discretion,  may  prohibit  the  introduction  or  use  of  any 
particular  invention  or  writing,  for  which  a  Patent  or 
a  Copyright  has  been  regularly  obtained  and  continues* 


,€HAP.  IV.    LOCAL  JURISDICTION  OF  COiNGRESS.  179 

in  full  force,  would  render  the  power  of  Congress 
nugatory  ;  and  the  States  would  substantially  retain 
the  very  power  they  had  nominally  parted  with. 

699.  The  several  States,  nevertheless,  retain  all 
other  means  of  rewarding  genius,  promoting  Science 
and  the  Arts,  of  encouraging  new  discoveries,  and 
inviting  useful  improvements,  except  this  particular 
power  ceded  to  the  Union  ;  and  each  State  may  use 
them  in  any  way  that  ingenuity  and  good  policy  may 
dictate,  and  which  does  not  interfere  with  the  exer- 
cise of  the  power  vested  for  those  purposes  in  Con- 
gress. 

700.  The  reason  of  this  difference  is,  that  all  other 
modes  of  rewarding  and  encouraging  genius,  promot- 
ing Science,  and  inviting  improvements  in  the  useful 
Arts,  may,  without  danger  of  being  defeated  by  the 
conflicting  Laws  of  co-ordinate  Legislatures,  be  safe- 
ly committed  to  the  several  States  ;  whilst  from  the 
peculiar  nature  of  the  Federal  system,  the  simple 
mode  of  securing  a  right  of  property  to  authors  and 
inventors  in  their  writings  and  discoveries,  must,  in 
order  to  effect  that  end,  be  exclusive  in  the  General 
Government. 

701.  The  next  Power  of  a  miscellaneous  character 
which  the  Constitution  vests  in  Congress,  is 

II.  The  Power  "  to  exercise  exclusive  Legisla- 
tion in  all  cases  whatsoever,  over  such  Dis- 
trict not  exceeding  ten  miles  square,  as 
might,  by  cession  of  particular  States,  and 
the  acceptance  of  Congress,"  become  the 
seat  of  the  Government  of  the  United 
States  ;  and  "  to  exercise  like  authority  over 
all  places  purchased  by  the  consent  of  the 
Legislatures  of  the  States  in  which  the 
same  shall  be  situate,  for  the  erection  of 


J80  MISCELLANEOUS  POWERS.  PART  It 

forts,  magazines,  arsenals,  dock-yards,  and 
other  needful  buildings." 

702.  Without  complete  supremacy  and  control  at 
at  the  seat  of  the  National  Government,  the  Federal 
authority  might  be  insulted,  and  its  proceedings  in- 
terrupted  with  impunity ;    whilst  a  dependence  of 
the  members  of  the  General  Government  on  one  of 
the  States  for  protection  in  the  exercise  of  their  du- 
ties, might  subject  the  National  Councils  to  the  im- 
putation of  partiality. 

703.  This  consideration  had  the  greater  weight, 
as  the  public  archives  liable  to  destruction  would 
accumulate,  and  the  gradual  multiplication  of  public 
documents,  at  the  stationary  residence  of  the   Go- 
vernment, would  create  further  obstacles  to  its  remo- 
val, and  further  abridge  its  necessary  independence, 

704.  The  necessity  of  a  like  authority  over  the 
forts,  arsenals,  dock-yards,  and  their  appendages,  es- 
tablished by  the  National  Government,  is  not  less  evi- 
dent ;  as  the  public  money  expended  on  such  places, 
and   the  public  property  deposited  in  them,  require 
that  they  should  be  exempt  from  the  authority  of  the 
particular  State  in  which  they  are  situate. 

705.  Nor  would  it  be  proper  that  places  on  which 
the  security  of  the  entire  Union  might  depend,  should 
be  in  any  degree  dependent  on  a  particular  member ; 
whilst  all  scruples  and  objections  are  obviated  by 
requiring  the  concurrence  of  the  States  concerned, 
in  every  such  establishment. 

706.  The  cessions  of  territory  contemplated  for 
the  first  object  were  duly  made,  and  Congress  were 
thereby  enabled  to  execute  this  power,  by  establish^ 
ing,  under  their  own  jurisdiction,  a  permanent  seat  for 
the  National  Government. 


C5HAP,  IV.        LOCAL  JURISDICTION  OF  CONGRESS.         181 

707.  This  Territory  was  erected  into  a  "  District" 
under  the  exclusive  jurisdiction  of  Congress,  by  the 
name  of  "  the  District  of  Columbia"  and  "  the  City 
of  Washington"  was  built  in  a  central  position  there- 
in ;  the  necessary  edifices  were  erected  for  the  ac- 
commodation of  the  Federal  Government,  and  its 
seat  was  permanently  established  there  at  the  com- 
mencement of  the  present  century. 

708.  Municipal  Corporations  have  been  created 
by  Congress  for  managing  the  local  concerns  of  the 
Federal  City,  and  of  the  Cities  of  Georgetown  and 
Alexandria,  which  are  also  both  comprised  within 
the  limits  of  the  ten  miles  square  ceded  by  the  States 
of  Maryland  and  Virginia,  for  the  purpose  expressed 
in  the  Constitution. 

709.  Laws  have  from  time  to  time  been  passed  by 
Congress  for  the  government  of  the  District  of  Co- 
lumbia, and  local  Courts  have  been  established  there- 
in for  the  administration  of  justice.     But  the  Acts  of 
Congress  adopt  the  Laws  of  Maryland  and  Virginia 
as  the  Law  of  the  several  portions  of  the   District 
ceded  by  those  States  respectively,  with  such  altera- 
tions only  as  were  rendered  necessary  by  the  change 
of  jurisdiction  ;  but  the  separation  and  transfer  of  ju- 
risdiction did  not  affect  contracts  existing  between 
individuals. 

710.  Although  the  inhabitants  of  the  District  of 
Columbia  ceased,  by  its  separation  from  Maryland 
and  Virginia,  to  be  Citizensof  those  respective  States ; 
yet,  as  Citizens  of  the  United  States,  they  are  entitled 
to  the  benefit  of  all  commercial  and  political  Treaties 
with  foreign  powers,  and  to  the  protection  of  the 
Union,  at  home  as  well  as  abroad. 

711.  Notwithstanding  the  power  of  Congress  to 

Q 


182  MISCELLANEOUS  POWERS.  PART  II. 

exercise  exclusive  jurisdiction  over  the  Federal  Dis- 
trict includes  the  power  of  taxing  its  inhabitants,  they 
do  not  in  any  manner  participate  in  the  election  of 
members  of  the  House  of  Representatives,  or  of 
Electors  of  President  and  Vice  President. 

712.  But  this  departure  from  the  rule  which  holds 
taxation  and  representation  to  be  inseparable,  is  not 
deemed  material  or  important ;  as  the  inhabitants  of 
the  District  of  Columbia  voluntarily  relinquished  the 
right  of  representation,  and  adopted   the  whole  body 
of  Congress  as  their  legitimate  Government. 

713.  The  next  power  falling  within  this  miscella- 
neous class,  is 

III.  The  Power  of  Congress  "  to  declare  the 
punishment  of  Treason"  against  the  United 
States. 

714.  It  is  a  general  principle,  that  every  Govern- 
ment contains  within  itself,  means  and  capacity  for 
its  own  preservation  ;  had  the  express  enumeration, 
therefore,  of  this  power  been  omitted  in  the  Consti- 
tution, the  Federal  Government  would  not  have  been 
left  dependent  on  the  several  States  to  protect  it  from 
treasons  and  conspiracies. 

715.  To  have  left  the  power  of  self-defence   to 
inference,  would  nevertheless  have  been  unwise  and 
unsafe,  as  artificial  and  constructive   treasons*  have 
been  frequently  converted  into  engines  of  oppression 
and  tyranny  ;   it  was  therefore  deemed   expedient 
to  insert  in  the  Constitution  a  definition  of  the  crime, 
to  prescribe  the  proof  requisite  for  conviction,  and 
to  restrain  Congress,  in  punishing  it,  from  extending 
the  consequences  of  guilt  beyond  the  person  of  the 
offender. 

716.  Treason  against  the  United  States  is  accor- 


CHAP.  IV.    TREASON  AGAINST  UNITED  STATES.  183 

dingly  declared  to  consist  "  only  in  levying  war 
against  them,  or  in  adhering  to  their  enemies,  giving 
them  aid  and  comfort  ;"  that  "  no  person  shall  be 
convicted  of  Treason  unless  on  the  testimony  of  two 
witnesses  to  the  snme  overt  act,  or  on  confession  in 
open  Court ;"  and  that  "  no  attainder  of  Treason  shall 
work  corruption  of  blood  or  forfeiture,  except  during 
the  life  of  the  person  attainted." 

717.  The  term  "levying  war,"  is  of  technical  sig- 
nification, and  is  adopted  from  the  English  Statute  of 
Treasons,    with   the  construction    which    has    been 
given  to  it  in  the  English*  Courts  ;  and  the  "  war"  in- 
cluded in  the  term,  comprehends  internal  rebellion  as 
well  as  hostilities  from  abroad. 

718.  A  conspiracy  to  subvert  by  force  the  Go- 
vernment of  the  United  States,  violently  to  dismem- 
ber the  Union,  to  coerce  the   repeal  of  a  general 
Law,  or  to  revolutionize   a  Territorial  Government 
by  force,  if  carried  into  effect  by  embodying  and  as- 
sembling a  military  force  in  a  military  posture,  are 
overt  acts  of  levying  war ;  and  not  only  those  who 
bear  arms,  but  those  who  perform   the  various  and 
essential  parts,  which  must   be  assigned  to  different 
persons  for  the  purpose  of  prosecuting  the  war,  are 
guilty  of  the  crime  of  Treason. 

4 

719.  But  a  mere  conspiracy  for  any  such  purpose, 
unaccompanied   by   any  overt  act,  is  not  Treason  ; 
and  to  constitute  a  "  levying  of  war,"  there  must  be 
an  assemblage  of  persons  with  intent  to  effect  by 
force  a  treasonable  purpose ;  but  the   mere  enlist- 
ment of  men  for  such  a  purpose,  is  not  sufficient. 

720.  Nor,  on  the  other  hand,  is  it  necessary  that 
an  individual  should  appear  in  arms,  to  constitute  the 
guilt  of  Treason  ;  for  if  war  be  actually  levied,  i.  e.  if 


184  MISCELLANEOUS  POWERS.  PART  If, 

a  body  of  men  be  actually  assembled  for  the  purpose 
of  effecting  by  force  a  treasonable  design,  all  those 
who  perform  any  part  in  the  conspiracy,  however 
minute,  or  however  remote  they  may  have  been  from 
the  scene  of  action,  if  actually  leagued  with  the 
others,  are  considered  as  traitors. 

721.  Similar  acts  committed  against  the  Laws  or 
Government  of  a  particular  State,  are  punishable  ac- 
cording to  the  Laws  of  that  State  ;  but  adhering  to  a 
foreign  nation  at  war  with  the  United  States,  and  af- 
fording it  aid  in  the  prosecution  of  hostilities,  is  Trea- 
son against  the  United  States,  and  not  against  the 
particular  State  of  which  the  party  is  a  Citizen. 

722.  A  confession  of  guilt  made  out  of  Court  is 
excluded  as  evidence  by  the  terms  of  the  Constitu- 
tion ;  but  after  the  overt  act  of  Treason  is  proved  by- 
two  witnesses,  such  confession  may  be  given  in  evi- 
dence by  way  of  corroboration  ;  and  the  testimony 
of  the  two  witnesses  must  be  to  the  same  overt  act, 
and  not,  as  in  England,  to  two  different  overt  acts  of 
the  same  species  of  Treason. 

x*  "^ 

723.  In  affixing  the  penalty  of  death  to  the  crime 
of  Treason,  Congress  have  acted  on  a  construction 
of  the  Constitution,  which  assumes  a  discretion  in 
them  to  omit  forfeiture  as  a  part  of  the  punishment, 
even  during  the  life  of  the  offender ;  as  they  have  de- 
clared, that  "  no  conviction  or  judgment  shall  work 
corruption  of  blood,  or  any  forfeiture  of  estate" 

724.  Corruption  of  b lood  is  derived  from  the  Com- 
mon Law  of  England,  in  reference  to  the  Feudal  sys- 
tem of  tenures,  and  signifies  that  an  attainted  person 
can  neither  inherit  lands  from  his  ancestors,  retain 
those  of  which  he  is  in  possession,  nor  transmit  them 
by  descent  to  his  heirs  ;  and  that  he  is  also  incapable 


CHAP.  IV.  ADMISSION  OF  NEW  STATES.  185 

of  transmitting  a  title  derived  by  descent  through 
him  from  a  remote  ancestor. 

725.  This  doctrine  is  founded  on  a  legal  fiction, 
and  is  equally  at  variance  with  the  liberal  spirit  of 
modern  times,  and  the  elementary  principles  of  jus- 
tice ;  and  in  carrying  this  power  into  execution,  Con- 
gress has  humanely  and  wisely  stopped   short  of  its 
constitutional  authority. 

726.  The  power  of  punishing  the  crime  of  Trea- 
son against  the   United   States,  is  necessarily  exclu- 
sive in  the  General  Government,  and  a  State  cannot 
take  cognizance  of  this  offence,  whatever  jurisdiction 
it  may  exercise  in  relation  to  Treason  committed  ex- 
clusively against  itself.     But  it  is  a  question  whether 
any  case  of  Treason  against  a  State  can  exist  since 
the  adoption  of  the  Federal  Constitution,  which  is  not 
at  the  same  time  Treason  against  the  United  States, 
and  merged  in  it. 

727.  Another  Power  of  a  miscellaneous  nature 
vested  in  the  Federal  Government,  is 

IV.  The  Power  of  "  admitting  new  States 
into  the  Union." 

728.  As  the  United  States  possessed,  at  the  adop- 
tion of  the   Constitution,  an  extensive  National  Ter- 
ritory, and  might  acquire  more  either  by  conquest  or 
cession,  this  power  was  with  propriety  vested  in  the 
National  Government.    But  it  was  not  granted  with- 
out restriction,  as  "  no  new  State  can  be  formed  or 
created  within  the  jurisdiction  of  any  other  State  ; 
nor  any  State  be  formed  by  the  junction  of  two  or 
more  States,  without  the  consent  of  the  Legislatures 
of  the  States  concerned,  as  well  as  of  Congress." 

729.  Since  the  adoption  of  the  Constitution,  large 


186  MISCELLANEOUS  POWERS,  PART  If, 

acquisitions  of  National  Territory  have  been  made  by 
the  purchases  of  Louisiana  and  Florida,  and  by  ces- 
sions from  the  State  of  Georgia  ;  and  the  constitu- 
tionality of  the  two  former  acquisitions,  though  for- 
merly questioned,  is  now  considered  as  settled  be- 
yond all  practical  doubt. 

730.  When  the  preliminary  measures  were  taken 
for  the  admission  of  the  State  of  Missouri  into  the 
Union,  an   attempt  was   made  to  include  a  prohibi- 
tion against  the  introduction  of  Slavery  into  that 
State,  as  a  condition  of  the  admission ;  but  the  con- 
stitutional authority  of  Congress  to  impose  such  a  re- 
striction, was  questioned  on  the  ground  of  its  incon- 
sistency with  the  sovereignty  of  the  State  to  be  ad- 
mitted ;  and  of  the  equality  of  the  latter  with  the 
other  States. 

731.  The  final  result  of  the  proceedings  which  au- 
thorized the  erection  of  that  State,  seems  to  establish 
the  authority  of  Congress  to  impose  such  a  restric- 
tion, although  none  was  applied  in  that  case  ;  and 
an  objection  of  a  similar  character,  which  had  been 
taken  to  the  compact   between  Virginia  and  Ken- 
tucky, containing  conditions  upon  which  the  latter 
was  erected  into  a  separate  State,  was  overruled  by 
the  Supreme  Court. 

732.  The  next  power  to  be  enumerated  in  this 
miscellaneous  class,  is 

V.  The  Power  of  Congress  "  to  dispose  of, 
and  make  all  needful  rules  and  regulations 
respecting  the  Territory,  and  other  pro- 
perty belonging  to  the  United  States." 

733.  This  Power  is  in  itself  obviously  proper,  and 
was  specially  requisite  to  avoid  an  objection  which 
had  been  taken  under  the  Confederation,  to  the  coa- 


CHAP.  IV.  TERRITORIAL  REGULATIONS.  187 

stitutional  authority  of  Congress  over  the  Territory 
ceded  to  the  United  States  during  the  existence  of 
that  compact ;  and  it  is  accompanied  by  a  condi- 
tion not  only  proper  in  itself,  but  probably  rendered 
necessary  by  the  jealousies  and  controversies  which 
existed  with  regard  to  that  Territory,  and  which  pro- 
vides that  "  nothing  in  the  Constitution  shall  be  so 
construed  as  to  prejudice  any  claims  of  the  United 
States,  or  of  any  particular  State." 

734.  As  the  General  Government  possesses  the 
right  to  acquire  Territory,  either  by  Conquest  or  by 
Treaty,  it  would  seem  to  follow  as  an  inevitable  con- 
sequence, that  it  possesses  the  power  to  govern  what 
it  may  so  acquire,  especially  as  the  Territory,  when 
acquired  and  held  by  the  United  States,  does  not 
thereby  become   entitled   to  self-government,  as   a 
State  or  as  a  Territory,  and  is  not  subject  to  the  ju- 
risdiction of  any  of  the  individual  States. 

735.  The  power  of  Congress  over  the  public  Ter- 
ritory beyond  the  limits  of  State  jurisdiction,  is  ex- 
clusive and  universal ;  and  its  legislation  is  subject 
to  no  control,  but  is  absolute  and  unlimited,  unless  so 
far  as  it  may  be  affected  by  stipulations  in  the  ces- 
sions, or  by  the  ordinance   of  1787,  under  which 

parts  of  it  were  settled. 

• 

736.  But  the  power  of  Congress  to  regulate  the 
other  National  property,  unless  it  has,  by  cession  of  the 
States,  acquired  exclusive  jurisdiction  therein,  is  not 
necessarily  exclusive  in  all  cases,  notwithstanding  the 
right  to  the  soil  may  have  been  conveyed  to  the 
United  States  by  the  former  proprietor. 

737.  The  "  guaranty,"  by  "  the  United  States  to 
every  State  in  the  Union,  of  a  republican  form  of  Go- 
vernment," to  "  protect  each  of  them  against  inva- 


188  MISCELLANEOUS  POWERS.  PART  II. 

sion  ;  and  on  application  of  the  Legislature,  or  of  the 
Executive,  when  the  Legislature  cannot  be  convened, 
against  domestic  violence,"  may  be  considered  as 
the 

VI.  Miscellaneous  power  vested  in  the  General 
Government,  as  it  gives  to  it  a  right  of  in- 
terference with  respect  to  the  objects  of  the 
guaranty. 

738.  Without  this  guaranty  the  interference  of  the 
General  Government  in  repelling  domestic  dangers 
and  commotions,  which  might  threaten  the  existence 
of  a  State  Constitution,  and  involve  the  destruction 
of  other  States,  and  even  of  the  National  Govern- 
ment itself,  could  not  be  demanded  from  it  as  a  right ; 
and   no   succour  could  be  constitutionally  afforded 
by  the  Union,  to  the  friends  and  supporters  of  the 
State  Government. 

739.  In  a  "confederated  Government,  founded  on 
republican  principles,  and  composed  of  republican 
members,  the  superintending  Government  ought  to 
possess  authority  to  defend  the  whole  system  from 
innovations  affecting  those  principles  ;  and  the  more 
intimate  the  Union,  the  greater  interest  have  its  mem- 
bers in  the  political  institutions  of  each  other,  and  the 
greater  right  to  insist  that  the  forms  of  government 
under  which  the  general  compact  was  entered  into, 
should  be  substantially  maintained. 

740.  But  the  mere  compact  without  the  power  to 
enforce  it,  would  be  of  little  value  ;  and  hence  the 
term  "  guaranty"  indicates  that  the  United  States  are 
authorized,  and  bound,  if  possible,  to  prevent  every 
State  in  the  Union  from  relinquishing  a  republican 
form  of  Government. 

741.  The  Constitution,  however,  imposes  no  other 


CHAP.  IV.          GUARANTIES  TO  THE  STATES.  189 

restriction  upon  the  alteration  of  the  State  Constitu- 
tions, than  that  they  shall  not  vary  from  the  repub- 
lican form  ;  so  that,  whenever  a  State  chooses  to  sub- 
stitute another  Republican  Constitution  in  place  of 
that  previously  existing,  it  has  a  right  so  to  do  ;  and 
is  equally  entitled  to  claim  for  it  the  benefit  of  the 
Federal  guaranty. 

742.  Protection  against  invasion  is  due  from  every 
Government  to  the  members  composing  it;  and  the 
Federal  Constitution  secures  each  State  not  only  from 
foreign  hostility,  but  against  the  ambitious  or  vindic- 
tive enterprize  of  its  more  powerful  neighbours. 

743.  Protection  against  domestic  violence  is  in- 
cluded in  the  stipulation  with  equal  policy  and  pro- 
priety, as  it  affords  the  means  of  enforcing  the  gua- 
ranty whenever  a  faction,  or  a  minority  in  a  State, 
endeavours  by  force  to  subvert  the  republican  form 
of  its  Government  ^     . 

744.  The  guaranty,  moreover,  extends  to  the  acts 
of  a  majority  of  a  State  when  directed  to  any  object 
of  unconstitutional  violence  ;  in  which  case  the  Ge- 
neral Government  is  equally  bound  to  protect  the 
State  authority  :  and  besides,  there  are  certain  parts 
of  the  State  Constitutions,  which  are  so  interwoven 
with  the  Federal  compact,  that  violence  cannot  be 
done  to  the  one,  without  injury  to  the  other. 

745.  This  right  of  interference,  however,  can  only 
be  exercised  when  the  violence  is  directed  against  the 
State  Constitution  alone ;  and  in  that  manner  acci- 
dentally and  indirectly  affects  the  Government  of  the 
Union  ;  for,  when  the  violence  is  immediately  direct- 
ed against  the  Federal  authority,  the  National  Go- 
vernment is  invested  with  power  to  repress  it,  inde- 
pendently of  any  requisition  of  the  State, 


190  MISCELLANEOUS  POWERS.  PART  iir 

746.  The  last  of  the  miscellaneous  powers  vested 
in  the  National  Government,  is 

VII.  The  Power  of  Congress  to  propose  Amend- 
ments to  the  Constitution,  and  to  call  Con- 
"  ::  ventions  for  amending  it,  upon  the  applica- 
tion of  two  thirds  .of  the  States. 

747.  As  it  must  have  been  foreseen  that  useful 
alterations  of  the  Constitution  would  be  suggested  by 
experience,    and    rendered    necessary  by  time   and 
change  of  circumstances,  it  was  requisite  that  some 
mode  of  amending  it  should  be  provided  ;  and  those 
adopted,  guard    equally  against    the    facility  which 
would  have  rendered  the  Government  unstable,  and 
the  difficulty  which  might  have  perpetuated  its  faults. 

748.  Two  modes  of  amendment  are  provided  in 
the  Constitution  itself;  one,  at  the  instance  of  the 
General  Government,  through  the  instrumentality  of 
Congress  ;  the  other  at  the  instance  of  the  States,  by 
means  of  a  General  Convention.       ; 

749.  Congress,  whenever  two  thirds  of  each  House 
concur  in  the  expediency  of  an   amendment,  may 
propose  it  for  adoption  ;  and  the  approval  of  the  Pre- 
sident is  not  required  to  any  amendment  of  the  Con- 
stitution proposed  by  Congress. 

750.  The  Legislatures  of  two  thirds  of  the  States, 
may  require  a  Convention  to  be  called  by  Congress, 
for  the  purpose  of  proposing  amendments  ;  and  in 
either  case,  three  fourths  of  the  States,  either  through 
their  Legislatures  or  by  Conventions  called  by  them 
for  the  purpose,  must  concur  in   every  amendment 
before  it  becomes  a  part  of  the  Constitution. 

751.  It  is,  however,  provided,  that  "  no  amendment 
shall  in  any   manner  affect"  the  provisions  of  the 


CHAP.  IV.         AMENDMENT  OF   CONSTITUTION.  191 

Constitution  with  respect  to  the  importation  of  Slaves, 
and  the  proportional  imposition  of  capitation  and 
other  direct  taxes  ;  and  that  k'  no  State  without  its 
consent  shall  be  deprived  of  its  equal  suffrage  in  the 
Senate." 

752.  Twelve  amendments  have  been  incorporated 
into   the    Constitution    since   its   adoption  ;    most  of 
which  have  been  explained  in  considering  the  subjects 
to  which  they  respectively  relate,  and  they  are  prin- 
cipally declaratory  of  the  inalienable  rights  of  indivi- 
duals, or  of  those  civil  and  political  privileges  which 
Society  provides  as  the  substitutes  or  auxiliaries  of 
natural  rights. 

753.  The  amendments  not  already  treated  of,  are 
also  declaratory  ;    and  provide,  by  way  of  greater 
caution,  that  "the  enumeration  in  the  Constitution  of 
certain  rights,  shall  not  be  construed  to  deny  or  dis- 
parage others  retained  by  the  People  ;"  and  that  "  the 
powers  not  delegated  to  the   United  States,  are  re- 
served to  the  States  respectively,  or  to  the  People." 

754.  The  former  of  these  amendments  was  intend- 
ed to  prevent  any  perverse  or  ingenious  misapplica- 
tion of  the  maxim,  that  "  an  affirmation  in  particular 
cases  implies  a  negation  in  all  others ;  and  that  a  ne- 
gation in  particular  cases  implies  an  affirmation  in  all 
others." 

755.  The  amendment  last  specified,  is  merely  an 
affirmation  of  a  necessary  rule  for  the  interpretation 
of  the  Constitution  ;  which,  being  an  instrument  of 
limited  and  enumerated  powers,  what  is  not  conferred 
by  it,  is  withheld,  and  is  retained  by  the  State   Go- 
vernments, if  vested  in  them  by  their  Constitutions ; 
and  if  not,  remains  with  the  People  as  a  portion  of 
their  residuary  sovereignty. 


192  RESTRICTIONS  ON  THE  STATES.  PART  IT, 

756.  This  amendment,  however,  does  not  confine 
the  National  Government  to  the  exercise  of  express 
powers ;  and  implied  powers  must  necessarily  have 
been  admitted,  unless  the  Constitution  had  descended 
to  the  regulation  of  the  minutest  details  of  legisla- 
tion. 

757.  It  is  a  general  principle,  that  all  bodies  politic 
possess  all  the  powers  incident  to  a  corporate  capa- 
city, without  an  express  declaration  to  that  effect ; 
and  one  of  those  defects  of  the  confederation  which 
led  to  its  abolition,  was  its  prohibiting  Congress  from 
the  exercise  of  any  power  "  not  expressly  delegated" 

758.  It  could  never,  therefore,  have  been  intended 
by  the  amendment  in  question,  to  abridge  any  of  the 
Powers  granted  under  the  new  Constitution,  whether 
express   or  implied, — direct   or  incidental ;    but   its 
manifest  and  sole  design  was,  to  exclude  any  inter- 
pretation by  which  other  powers  should  be  assumed 
beyond  those  which  had  been  granted. 

759.  All  the  powers  granted  by  the  Constitution 
to  the  Government  of  the  Union,  whether  express  or 
implied, — direct  or  incidental,  are  left  by  the  amend- 
ment in  their  original  state  ;  whilst  all  powers  "  not 
delegated"  (not  all  powers  "  not  expressly  delegated,") 
and  not  prohibited,  are  reserved. 


CHAPTER  V. 

OF  THE  CONSTITUTIONAL  RESTRICTIONS  ON    THE  POWERS 
OF  THE  SEVERAL  STATES. 

760.  The  restrictions  contained  in  the  Federal 
Constitution  on  the  powers  of  the  States,  have  been 
distinguished  into  two  sorts  :  the  first,  comprehend- 


«HAP.  V.  ABSOLUTE  RESTRICTIONS.  193 

ing  those  limitations  which  are  absolute  ;  the  second, 
such  as  are  qualified. 

761.  The  restrictions  embraced  by  the  former, 
prohibit  any  State  from  entering  into  any  Treaty  of 
Alliance  or  Confederation,  from  granting  letters  of 
Marque  and  Reprisal,  coining  money,  emitting  bills  of 
credit,  or  making  any  thing  but  gold  or  silver  coin  a 
tender  in  payment  of  debts ;  from  passing  any  bill  of 
Attainder,  ex  post  facto  Law,  or  Law  impairing  the 
obligation  of  Contracts ;  and  from  granting  any  title 
of  nobility. 

762.  The  policy  of  the  prohibition  against  Treaties, 
Alliances,  and  Confederations  by  the  several  States, 
is  justified  by  the  advantage  of  uniformity  in  all  mat- 
ters relating  to  foreign  intercourse ;  and  by  the  ne- 
cessity of  an  immediate  responsibility  to  the  Nation^ 
of  all  those  for  whom  the  Nation  is  responsible  to 
others. 

763.  If  every  State  were  at  liberty  to  enter  into 
Treaties,  Alliances,  and  Confederacies  with  foreign. 
States,  or  with  other  members  of  the  Union,  the 
power  confided  to  the  National  Government,  in  re- 
gard to  the  former,  would  be  rendered  nugatory ; 
whilst  the  whole  Constitution  might  be  subverted  by 
the  exercise  of  such  a  power  amongst  the  States 
themselves. 

764.  The  prohibition  to  grant  Letters  of  Marque 
and  Reprisal,  is  supported  on  the  same  general  grounds 
of  policy ;  as  otherwise  it  would  be  in  the  power  of 
a  single  State  to  involve  the  whole  Union  in  war,  at 
its  pleasure  ;  and  although  the  issuing  of  Letters  of 
Marque  and  Reprisal,  is  not  always  designed  as  a 
preliminary  or  provocation  to  war,  yet  in  its  essence 
it  is  a  measure  of  hostile  retaliation  for  unredressed 

R 


194  RESTRICTIONS  ON  THE  STATES.  PART  If, 

grievances,  real  or  supposed,  and  is  most  generally 
succeeded  by  open  hostilities. 

765.  The  prohibition  of  the  States  to  "  coin  mo- 
ney," was  necessary  to  give  complete  effect  to  the 
power  of  the  Union,  in  relation  to  the  current  coin  ; 
and  it  arose  from  a  consideration  of  the  danger  and 
facility  of  circulating  base  and  spurious  coins,  where 
the  coins  are  various  in  value  and  denomination,  and 
issued  by  several  independent  and  irresponsible  au- 
thorities. 

766.  The  prohibition  to  "  emit  bills  of  credit,"  was 
amply  justified  by  the  losses  sustained  between  the 
war  of  the  Revolution  and  the  adoption  of  the  Con- 
stitution, from  the  fatal  effects  of  paper  money,  and 
their  injurious  effects  on  public  and  private  confidence, 
on  the  industry  and  morals  of  the  people,  on  the  Na- 
tional reputation,  and  on  the  character  of  Republi- 
canism itself. 

767.  Were  each  state  at  liberty  to  regulate  the 
value  of  its  currency,  whether  of  coin  or  of  paper, 
there  might  be  as  many  different  currencies  as  there 
are  States  ;  and  the  commercial  intercourse  between 
them  would  be  proportionally  impeded  ;  whilst  retro- 
spective alterations  of  the  value  of  its  currency,  might 
be  made  by  any  State,  in  fraud,  not  only  of  its  own 
Citizens,  but  of  those  of  other  States,  as  well  as  of  the 
subjects    of   foreign    powers  ;    whereby    harmony 
amongst  the  States,  and  confidence  and  peace  with 
other  Nations,  would  be  interrupted,  if  not  destroyed. 

768.  This  restriction  on  the  power  of  the  States, 
in  connexion  with  the  prohibition  to  make  any  thing 
but  gold  or  silver  coin  a  tender  in  payment  of  debts, 
(which  power  is  withdrawn  from  the  States  on  the 
game  principle,)  has  received  a  Judicial  construction 


CHAP.  V.  BILLS  OF  ATTAINDER.  195 

of  the  utmost  importance,  both  to  the  rights  of  the 
States  and  the  authority  of  the  General  Government. 

769.  Although  the  term  "  bills  of  credit,"  in  its 
enlarged,  and  perhaps  in  its  literal  sense,  may  com- 
prehend any  instrument  by  which  a  State  engages 
to  pay  money  at  a  future  day,  thus  including  a  certi- 
ficate given  for  money  borrowed  ;  yet  the  language  of 
the  Constitution,  and  the  mischiefs  intended  to  be 
prevented,  have  been  held  equally  to  limit  its  inter- 
pretation to  paper  redeemable  at  a  future  day,  in  an- 
ticipation of  the  public  resources,  and  intended  to 
circulate  through  the  community  for  its  ordinary  pur- 
poses as  money. 

770.  The  Constitution  considers  the  emission  of 
bills  of  credit,  and  the  enactment  of  tender  Laws, 
as  distinct  operations,  which  may  be  separately  per- 
formed independently  of  each  other ;   and  to  hold 
that  bills  of  credit  may  be  emitted,  if  not  made  a 
lawful  tender  in  payment  of  debts,  would  be  in  effect 
to  expunge  that  distinct  and  independent  prohibition, 
from  the  Constitution. 

771.  Bills  of  Attainder,  ex  pout  facto  Laws,  and 
Laws  impairing  the  obligation  of  Contracts,  are  con- 
trary to  the  first  principles  of  the  social  Contract,  and 
to   every   principle   of  sound   legislation :    the  two 
former  are  also  expressly  prohibited  to  Congress  by 
the  Federal   Constitution,  and  to  some  of  the  State 
Legislatures,  by  declarations  of  rights  prefixed  to  their 
Constitutions. 

772.  Bills  of  Attainder  are  such  special  Acts  of  the 
Legislature  as  inflict  capital  punishment  upon  persons 
whom  they  declare  to  be  guilty  of  high  offences,  with- 
out trial  or  conviction  in  the  ordinary  course  of  judi- 
cial proceedings.   They  have  generally  been  confined 


196  RESTRICTIONS  ON  THE  STATES.  PART  II. 

to  cases  of  Treason,  and  have  never  been  resorted  tor 
except  in  times  of  internal  commotion  and  arbitrary 
misrule. 

773.  If  the  Bill  inflict  a  milder  punishment  than 
death,  it  is  called  a  BUI  of  Pains  and  Penalties  ;  but 
in  the  sense  of  the  Constitution,  it  seems  that  bills  of 
Attainder  include  bills  of  Pains  and   Penalties,  as  it 
has  been  held  that  "  a  bill  of  Attainder  may  affect  the 
life  of  an  individual,  or  may  confiscate  his  property, 
or  both.'' 

774.  Ex  post  facto  Laws,  are  those  which  render 
an  act  punishable  in  a  manner  in  which  it  was  not 
punishable  when  committed ;  and  this  definition  em- 
braces both  Laws  inflicting  personal  or  pecuniary  pe- 
nalties, for  acts  before  innocent,  and  Laws  passed 
after  the  commission  of  an  unlawful  act,  which  en- 
hance its  guilt,  or  aggravate  its  punishment. 

775.  The  term  "  ex  post  facto  Law,"  is  often  sup- 
posed to  comprehend  all  Laws  having  a  retro-active 
operation ;  but  its  technical  meaning  is  confined  to 
such  as  declare  criminal,  art  act  done  before  the  Law 
was  passed,  and  which  was  not  so  at  that  time  ;  and 
such  as  aggravate  an  offence,  and   render  it  more 
criminal  than  it  was  when  committed,  or  inflict  a 
greater  punishment  than  the  Law  annexed  to  a  crime 
when  it  was  perpetrated  ;  or  to  such  as  alter  the  rules 
of  evidence,  and  admit  different,  or  less  testimony  to 
convict  the  offender,  than  was  required  at  the  com- 
mission of  the  offence. 

776.  Laws  impairing  the  obligation  of  Contracts, 
are  generally  retrospective  in  their  operation,  and  are 
equally  inconsistent  with  sound  legislation,  and  the 
fundamental  principles  of  the  social  contract.     They 
are  interdicted  to  the  States,  but  not  to  the  National 
Legislature., 


CHAP.  V.  EX  POST  FACTO  LAWS.  197 

777.  By  Contracts,  in  the  sense  of  the  Constitution, 
are   understood  : — 1st.    Every  executed   agreement, 
whether  between  individuals,  or  between  individuals 
and  a  State  ;  and  2dly.  Every  executory  agreement 
which  confers  a  right  of  action,  or  creates  a  binding 
obligation,  in  relation  to  subjects  of  a  valuable  nature, 
and   which  may  be  asserted  in  a  Court  of  Justice, 
But  the  term  does  not  comprehend  the  political  rela- 
tions between  a  Government  and  its  Citizens. 

778.  The  power  possessed  by  a  State  Legislature, 
to  which  every  thing  is  granted  that  is  not  expressly 
reserved,  and  the  temptations  to  the  abuse  of  such  a 
power,  render  express  restrictions  upon  its  exercise,  in 
regard  to  Contracts,  useful,  if  not  necessary ;  but  the 
Legislature  of  the  Union  has  no  power  to  interfere 
with  Contracts,  unless  it  be  expressly  granted  to  them. 

779.  By  the  obligation  of  Contracts,  in  the  meaning 
of  the  Constitution,  is  understood,  not  the  mere  mo- 
ral, but  the  legal  obligation  ;  and  in  this  sense,  a  sys- 
tem of  Bankruptcy  impairs  the  obligation  of  Contracts 
when  it  releases   the   party  from   the   necessity  of 
performing  them.    But  Congress  is  expressly  invested 
with  this  power,  writh  respect  to  Bankruptcies,  as  an 
enumerated,  not  as  an   implied  power  ;  and  in  no 
other  form  can  they  impair  the  obligation  of  Con- 
tracts. 

780.  This  prohibition,  in  regard  to  the  States,  ex- 
tensively and  deeply  affects  their  legislative  authority, 
as  a  compact  between  two  States,  or  a  grant  from  a 
State  to  individuals,  is  as  much  protected  by  this  re- 
striction, as  a  grant  from  one  individual  to  another  -r 
and  the  State  is  as  much  inhibited  from  impairing  its- 
own  Contracts,  or  those  to  which  it  is  a  party,  as  it  is 
from  impairing  the  obligation  of  a  Contract  between 
two  individuals. 


198  RESTRICTIONS  ON  THE  STATES.  PART  H. 

781.  The  words  of  the  prohibition  not  only  com- 
prehend equally  executed  and  executory  Contracts,  but 
extend  to  them  whether  they  are  express  Contracts, 
or  such  as  declare  on  their  face  the  terms  of  the 
agreement  at  the  time  of  making  it ;  or  whether  they 
are  implied  Contracts,  or  those  of  which  the  terms 
are  not  declared,  but  are  such  as  reason  and  justice 
dictate  from  the  nature  of  the  transaction. 

782.  A  legislative  compact  or  grant,  is  a  Contract 
within  the  meaning  of  the  Constitution ;  and  when  a 
Law  in  its  nature  amounts  to  a  Contract,  and  absolute 
rights  have  vested  under  it,  its  repeal  can  neither  di- 
vest those  rights,  nor  annihilate  or  impair  a  title  ac- 
quired under  it ;  for  a  grant  is  a  Contract  executed  ; 
and  in  no  case,  and  for  no  cause,  can  a  party  impeach 
the  validity  of  his  own  deed. 

783.  Legislative  grants,  then,  are  irrevocable  in 
their  nature,  and  are  not  held  at  the  mere  pleasure  of 
the  Government ;  nor  can  a  Legislature  repeal  Sta- 
tutes creating  private  Corporations,  or  confirming  to 
them  property  acquired  under  the  faith  of  previous 
Laws,  and  by  such  repeal,  vest  the  property  in  others, 
without  the  consent  or  default  of  the  Corporators. 

784.  -This  provision  of  the  Constitution,  however, 
has  never  been  understood  to  embrace  any  other  Con- 
tracts than  those  which  respect  property,  or  some 
object  of  value,  and  confer  rights  capable  of  being 
asserted  in  a  Court  of  Justice. 

785.  Where  the  legal  interest  in  literary  or  chari- 
table Institutions  is  vested  by  Charter  in  Trustees,  in 
order  to  promote  the  objects  for  which  they  were  in- 
corporated, and  donations  made  to  them,  they  are 
considered  within  the  protection  of  the  Constitution. 

786.  A  grant  to  a  private  Trustee  for  the  benefit 


CHAP.  V.  LAWS  IMPAIRING  CONTRACTS.  199 

of  another  person,  or  for  any  special,  private,  or  pub- 
lic charity,  is  within  the  prohibition  ;  as  a  grant  is  not 
the  less  a  Contract,  because  the  possessor  takes 
nothing  under  it  for  his  own  benefit ;  nor  does  a  pri- 
vate donation,  vested  in  Trustees  for  objects  of  a  ge- 
neral nature,  thereby  become  a  public  trust,  which 
the  Government  may  at  its  pleasure  take  from  the 
Trustee. 

787.  Governments  cannot  revoke  a  grant,  even  of 
t'  eir  own  funds,  when  made  to  a  private  person,  or 
to  a  Corporation,  for  special   purposes  ;   and  after 
making  such  grams,  they  have  no  remaining  authority 
to  enforce  the  administration  of  the  Trust,  than  such 
as  is  judicial. 

788.  All  Corporate  franchises  are  deemed  legal 
estates  ;  and  all  incorporeal  hereditaments,  as  they  are 
termed  in  the  Law,  such  as  Immunities,  Offices,  and 
Franchises,  are  rights  regarded  by  it  as  valuable  ;  and 
whenever  they  are  the  subject  of  a  grant  or  Contract, 
are  as  much  within  the  protection  of  the  Constitution 
as  any  others. 

789.  The  objection  to  a  Law  on  the  ground  of  its 
impairing  the  obligation  of  Contracts,  does  not  depend 
on  the  extent  of  the  change  effected  ;  any  deviation 
from  the  terms  of  the  Contract,  by  postponing  or  ac- 
celerating the  period  of  performance,  imposing  condi- 
tions not  expressed  in  the  Contract,  or  dispensing  with 
the  performance  of  those  which  it  contains,  impairs 
its  obligation. 

790.  A  State  Insolvent  Law,  which  discharges  a 
debtor  from  his  Contract  to  pay  a  debt  by  a  given 
time,  and  releases  him  without  payment,  from  any 
future  obligation  to  pay,  impairs,  because  it  entirely 
discharges,  the  obligation  of  the  Contract,  if  the  same 
were  made  anterior  to  the  Law. 


200  RESTRICTIONS  ON  THE  STATES.  PART  If* 

791.  But  the  States  may  constitutionally  pass  such 
Insolvent  Laws,  operating  upon  future  contracts  made 
within  the  State,  and  between  Citizens  of  the  State  ; 
whilst,  in  regard  to  Contracts  made  subsequent  to  the 
Law,  if  made  without  the  State,or  within  it,  if  between 
a  Citizen  of  the  State  and  a  Citizen  of  another  State, 
or  an  Alien,  the  State  does  not  possess  a  jurisdiction 
co-extensive  with  the  Contract,  over  the  parties  ;  and 
therefore  the  Constitution  of  the  United  States  pro- 
tects such  Contracts  from  prospective,  as  well  as  re- 
trospective legislation. 

79*2.  If,  however,  a  creditor  in  any  such  case  vo- 
luntarily makes  himself  a  party  to  the  proceedings 
under  an  Insolvent  Law  of  a  State,  which  discharges 
the  Contract,  he  will  be  bound  by  his  own  act,  and 
deemed  to  have  abandoned  his  extra-territorial  im- 
munity. 

793.  The  prohibition  in  question  does  not  apply  to 
Insolvent  Laws,  or  other  Laws  impairing  the  obliga- 
tion of  Contracts,  passed  before  the  adoption  of  the 
Constitution,  and  operating  upon  rights  of  property 
vested  before  that  time  ;  and  State  Insolvent  Laws 
have  no  operation  whatever  on  Contracts  made  w^ith 
the  United  States,  for  such  Contracts  are  in  nowise 
subject  to  State  jurisdiction. 

794.  As  the  prohibition  respecting  ex  post  factor 
Laws  applies  only  to  criminal  cases,  and  that  now 
under  consideration  is  confined  to  Laws  impairing 
the  obligation  of  Contracts  ;  there  remain  many  Laws 
of  a  retrospective  character,  which,  however  unjust, 
oppressive,  or  impolitic,  may  yet  be  constitutionally 
passed  by  the  State  Legislatures. 

795.  The  last  absolute  prohibition  is,  that  no  State 
"shall  grant  any  title  of  nobility  ;"  the  reason  of  which? 


CHAP.  V.  TITLES  OF  NOBILITY.  201 

is  the  same  as  that  for  the  like  prohibition  on  the  Na- 
tional Government;  viz.  the  inconsistency  of  such  a 
power  with  that  perfect  equality,  which  is  the  basis 
of  the  National  and  State  institutions ;  and  it  would 
have  been  useless  to  prohibit  it  to  the  former,  if  the 
latter  were  left  free  to  exercise  it. 

796.  The  qualified  prohibitions  upon  the  powers 
of  the  States,  are  those  which  restrict  them  from  lay- 
ing "  any  imposts,  or  duties  on  imports  or  exports, 
except  what  may  be  absolutely  necessary  for  execut- 
ing their  inspection  Laws ;"  from  laying  "  any  duty  on 
tonnage  ;  keeping  troops  or  ships  of  war,  in  time  of 
peace ;  entering  into  any  agreement  or  compact  with 
another  State,  or  with  a  foreign  power  ;  or  from  en- 
gaging in  war,  unless  actually  invaded,  or  in  such  im- 
minent danger  as  will  not  admit  delay — without  the 
consent  of  Congress" 

797.  The  prohibition  in  regard  to  duties  on  im- 
ports and  exports,  and  on  tonnage,  is  founded  on  the 
Bame  reasons  which  prove  the  necessity  of  submit- 
ting the  regulation  of  Commerce  to  the  National  Go- 
vernment ;  and  upon  the  further  consideration  that, 
from  the  inequality  between  different  States  as  to 
commercial  advantages,  the  interests  of  all  would  be 
best  promoted,  by  submitting  the  whole  subject  to 
the  control  of  Congress. 

798.  An  Act  of  a  State  Legislature,  requiring  all 
importers  of  foreign  goods,  and  others  selling  the 
same  by  wholesale,  to  obtain  a  license  from  the  State> 
and  to  pay  a  sum  of  money  therefor  into  the  State 
Treasury,  is  repugnant  to  this  provision  of  the  Con- 
stitution. 

799.  An  impost,  or  duty  on  imports,  is  a  tax  levied 
upon  articles  brought  into  the  country,  and  especially 


202         RESTRICTIONS  ON  THE  STATES.    PART  II, 

upon  such  as  are  brought  into  it  for  sale  ;  and  it  is 
most  usually  levied  or  secured  before  the  importer  is 
allowed  to  exercise  his  right  of  ownership  over 
them,  because  evasions  of  the  law  can  be  more  cer- 
tainly prevented  by  executing  it  whilst  the  articles 
are  in  its  custody. 

800.  It  would  not,  however,  be  less  a  duty  on  the 
articles,  if  it  were  levied   on  them  after  they  were 
landed  ;  as  the  policy  and  practice  of  levying  and  se- 
curing the  duty  before,  or  upon,  entering  the  port, 
does  not  limit  the  power  to  that  period  for  its  exer- 
cise ;  and  consequently  the  prohibition  upon  the  ex- 
ercise of  such  a  power,  is  not  so  limited,  unless  the 
meaning  of  the  term  so  confines  it. 

801.  Imports  are  things  imported,  or  the  articles 
themselves  which  are    brought  into    the   country ; 
and  a  duty  on  imports,  is  not  merely  a  tax  on  the 
act  of  importation,  but  an  impost  on  the  thing  im- 
ported ;  and  is  not  confined  in  its  signification  to  a 
duty  levied  whilst  the  article  is  entering  the  country, 
but  extends  to  a  duty  levied  after  the  article  has  ac- 
tually entered  it. 

802.  There  is  no  difference  in  effect  between  a 
power  to  prohibit  the  sale  of  an  article,  and  a  power 
to  prohibit  its  introduction  into  the  country ;  and  the 
one  would  be  the   necessary  consequence  of  the 
other,  as  no  goods  would  be  imported,  if  none  could 
be  sold  ;  nor  can  any  object  be  accomplished  by  lay- 
ing a  duty  upon  importation,  which  may  not  be 
effected  by  laying  a  duty  on  the  article,  in  the  hands 
of  the  importer. 

803.  The  prohibition  on  the  States  to  lay  a  duty 
on  imports,  may,  indeed,  come  in  conflict  with  their 
acknowledged  powers  to  tax  persons  and  property 


OIAP.  V.  QUALIFIED  RESTRICTIONS.  203 

within  their  jurisdiction  ;  but  the  right  which  an  im- 
porter acquires,  not  only  to  bring  the  articles  into 
the  country,  but  to  mix  them  by  sale  with  the  com- 
mon mass  of  property,  does  not  interfere  materially 
with  the  necessary  power  of  taxation  acknowledged 
to  reside  in  the  States. 

804.  When  the  importer  has   so  dealt  with  the 
thing  imported,  as  that  it  has  become  incorporated 
with  the  mass  of  property  in  the  country,  it  has  per- 
haps lost  its  distinctive  character  as  an  import,  and 
become  subject  to  the  taxing  power  of  the  State  ; 
but  whilst  it  continues  the  property  of  the  importer 
and  remains  in  his  warehouse,  a  State  tax  on  it,  is  a 
duty  on  imports  within  the  prohibition. 

805.  Although  a  State  may  lay  a  tax  on  occupa- 
tions, yet  in  the  instance  of  an  importer  of  foreign 
goods,  it  makes  no  difference  that  the  tax  is  imposed 
on  the  person  of  the  importer;  for  a  tax  on  his  occu- 
pation  is  in  effect,  a  tax  on  importation,  as  it  must 
add  to  the  price  of  the  article,  and  be  paid  by  the  con- 
sumer, or  by  the  importer  himself,  in  the  same  man- 
ner as  a  direct  duty  on  the  article. 

806.  The  general  power  of  taxation  is  retained  by 
the  States  without  being  abridged  by  the  grant  of  a 
similar  power  to  the  Government  of  the  Union  ;  and 
is  to  be  concurrently  exercised  by  both  Governments 
under  their  respective  Constitutions ;  but  from  the 
paramount  authority  of  the  Federal  Government,  it 
may  withdraw  any  subject  of  taxation  from  the  ac- 
tion of  State  power. 

807.  As  the  unavoidable  consequence  of  the  su- 
premacy which  the  Constitution  has  declared,  the 
States  are  restrained,  without   any  express  prohibi- 
tion, from  any  exercise  of  their  taxing  power,  which 


204  RESTRICTIONS  ON  THE  STATES.       PART  IT* 

in  its  nature  is  incompatible  with,  or  repugnant  to, 
the  constitutional  Laws  of  the  Union. 

808.  As  the  States  have  no  power  by  taxation,  or 
otherwise,  to  retard,  impede,  burthen,  or  in  any  man- 
ner to  control,  the  operation  of  constitutional  Laws 
enacted  by  Congress  to  carry  into   execution  the 
powers  vested  in  the  General  Government,  they  can- 
not tax  the  Stock  of  the  Bank  of  the  United  States, 
or  the  certificates  issued  by  the  Government  for  mo- 
ney borrowed  on  the  credit  of  the  United  States ; 
for  the  one  is  an  instrument,  and  the  others  incidents 
of  a  power,  essential  to  the  fiscal  operations  of  the 
Union. 

809.  The  other  qualified  prohibitions   have  their 
origin  in  the  same  general  policy  which  absolutely 
forbids  any  State  from  entering  into  any  Treaty,  Al- 
liance, or  Confederation  ;  and  from  granting  Letters 
of  Marque  and  Reprisal ;  and  they  are  supported  by 
the  same  reasoning  which  establishes  the  propriety  of 
confiding  every  thing  relating  to  the  power  of  decla- 
ring War,  to  the  exclusive  direction  and  control  of 
the  National  Government. 

810.  Treaties  of  alliance,  for  purposes  of  Peace  or 
War,  of  external   political   dependence,  or  general 
commercial  privileges  ;  Treaties  of  Confederation  for 
mutual  government,  political  co-operation,  or  the  ex- 
ercise of  political  sovereignty,  or  for  conferring  in- 
ternal political  jurisdiction,  are  absolutely  prohibited 
to  the  States. 

811.  But  compacts   and  agreements  which  apply 
to  the  mere  private  rights  of  sovereignty,  such  as 
questions  of  boundary  between  a  State  and  a  foreign 
province,  or  another  State  ;  interests  in  land  situate 
within  their  respective  boundaries,  and  other  inter- 


CHAP.  VI.  AUXILIARY  POWERS.  205 

nal  regulations  for  the  mutual  accommodation  of 
States  bordering  on  each  other,  may  be  entered  into 
by  the  respective  States,  with  the  consent  of  Con- 
gress. 

812.  A  total  interdiction  of  such  agreements  or 
Contracts,  might  have  been  attended  with  permanent 
inconvenience   or  public  injury  to  the  States ;  and 
the  consent  of  Congress  to  their  being  entered  into, 
is  required  to  guard  against  every  infringement  of 
the  National  rights,  which  might  be  involved  in  them, 

813.  As  the  maintenance  of  an  Army  and  Navy 
by  a  State  in  time  of  Peace  might  produce  jealousies 
and  alarm  in  neighbouring  States,  and  in  foreign  Na- 
tions possessing  provinces  bordering  on  its  territory, 
the  States  are  prohibited  therefrom,  unless  with  the 
consent  of  the  National  Government.     But  as  a  State 
may  be  so  situated  in  time  of  war,  as  to  render  a  mi- 
litary force  necessary  to  resist  an  invasion,  of  which 
the  danger  may  be  too  imminent  to  admit  of  delay 
in  organizing  it,  the  States  have  a  right  to  raise  troops, 
and  fit  out  fleets  for  its  own  safety  in  time  of  war, 
without  obtaining  the  consent  of  Congress. 

CHAPTER  VI. 


FOR  GIVING    EFFICACY  TO  THE  POWERS  VESTED  IN  THE, 
GENERAL  GOVERNMENT. 

814.  The  last  class  of  Powers  enumerated  in  the 
Constitution,  consists  of  the  several  provisions,  by 
which  efficacy  is  given  to  the  rest ;  and  the 

I.  Of  these  is,  the  "  Power  to  make  all  Laws 
necessary  and  proper  for  carrying  into  ex- 
ecution the  foregoing  Powers." 
S 


206  AUXILIARY  POWERS.  PART  TL 

815.  This  power  would  have  resulted  by  neces- 
sary implication,  from  the  act  of  establishing  a  Na- 
tional Government  and  vesting  it  with  certain  powers ; 
as  without  the  necessary  and  proper  means  of  exe- 
cuting those  Powers,  the  ends  proposed  by  them 
could  never  be  attained. 

816.  The  plain  import  of  the  clause  is,  that  Con- 
gress shall  have  all  the  incidental  and  instrumental 
powers  necessary  and  proper  to  carry  into  execution 
their  express  powers  ;  and  it  seems  to  have  been  in- 
serted in  the  Constitution  from  abundant  caution,  as 
it  neither  enlarges  nor  restricts  any  power  specifically 
granted,  nor  grants  any  new  power ;  but  is  merely 
a  declaration  to  remove  all  uncertainty  as  to  whether 
the  means  of  carrying  the  powers  previously  granted 
into  execution:,  were  included  in  the  grant. 

817.  Whenever  a  question  arises  concerning  the 
constitutionality  of  a  particular  power  of  Congress, 
the  first  inquiry  is,  whether  the  power  be  expressed 
in  the  Constitution  ;  if  it,  be,  all  doubt  as  to  its  exist- 
ence, must  be  at  once  removed  ;  but  if  it  be  not  con- 
tained in  terms,  in  the  Constitution,  the  inquiry  then 
is,  whether  it  be  properly  an  incident  to  an  express 
power,  and  necessary  to  its  execution. 

818.  The  question  then  arises  as  to  the  true  inter- 
pretation of  the  terms  "  necessary  and  proper," — i.  e. 
whether  the  word  "  necessary,"  is  used  in  its  closest 
and  most  intense  meaning,  so  as  to  exclude  all  means 
except  such  as  are  absolutely  and  indispensably  ne- 
cessary, and  without  which  the  grant  would  be  nuga- 
tory ;  or  whether  these  terms  allow  to  Congress  a 
choice  of  the  most  convenient  and  appropriate  means, 
amongst  those  which  are  calculated  to  effect  the  end. 

819.  The  latter  construction  has  been  adopted  by 


CHAP.  VI.      INCIDENTAL  AND  IMPLIED  POWERS.  207 

all  the  departments  of  the  National  Government,  in 
reference  to  the  Bank  of  the  United  States  ;  which 
was  accordingly  considered  to  be  constitutionally 
created  under  this  power,  as  a  known  and  usual  in- 
strument by  which  several  of  the  specifically  enume- 
rated Powers  of  Congress  are  exercised. 

820.  Every  Power  vested  in  a  Government,  is  in 
its  nature  sovereign,  and  gives  a  right  to  employ  all 
the  means  fairly  applicable  to  attaining  the  end  of  the 
Power,  and  not  specially  excepted  from  the  grant  of 
sovereignty,  nor  contrary  to  the  essential  ends  of  poli- 
tical society. 

821.  Although  the   Government  of  the   United 
States  is  one  of  limited  and  specified  Powers,  yet  it 
is  sovereign  with  respect  to  its  proper  objects  and 
declared  purposes  and  trusts ;  and  as  it  is  incident  to 
sovereign  Power  to  erect  Corporations,  it  is  compe- 
tent for  the  Government  of  the  United  States  to  cre- 
ate one  in  relation  to  the  objects  entrusted  to  its  ma- 
nagement. 

822.  The  Power  of  creating  a  Corporation,  though 
incident  to  sovereignty,  is  not  a  substantive  and  inde- 
pendent power,  but  merely  an  instrument  or  means 
by  which  other  objects  are  accomplished  ;  as  a  Cor- 
poration is  never  created  or  used  for  its  own  sake, 
but  always  for  the  purpose  of  effecting  some  end  be- 
yond its  mere  existence. 

823.  The  implied  Powers  of  Congress  are  as  com- 
pletely delegated  as  those  which  are  specifically  enu- 
merated, and  the  power  of  erecting  a  Corporation 
may  as  well  be  implied  as  any  other  instrument  or 
means  of  carrying  into  execution  any  of  the  express 
powers ;  as  the  exercise  of  such  a  power  has  a  natural 
relation  to  the  constitutional  ends  of  the  Government, 
in  reference  to  its  currency  and  fiscal  operations. 


208  AUXILIARY  POWERS.  PART  II, 

824.  The  word  "  necessary"  admits  of  degrees  of 
comparison,  and  is  often  used  in  various  senses ;  and 
in  giving  it  a  construction,  the  subject,  the  context, 
and  the  intention,  are  all  to  be  regarded.     A  thing 
may  be  necessary,  very  necessary,  or  absolutely  and 
indispensably  necessary ;  or  the  word  may  mean  no 
more  than  needful,  requisite,  or  conducive  to  ;  in  which 
sense  it  is  held  to  have  been  used  in  this  clause  of  the 
Constitution. 

825.  To  have  declared  that  the  best  means  to  carry 
into  effect  any  specified  power,  should  not  be  used, 
but  those  only  without  which  the  power  would  be 
nugatory,  would  have  deprived  Congress  of  the  capa- 
city to  avail  itself  of  experience,  or  to  exercise  its 
reason,  and  accommodate  its  legislation  to  circum- 
stances. 

826.  If  the  end  be  legitimate,  and  within  the  scope 
of  the  Constitution,  all  means  which  are  appropriate 
and  plainly  adapted  to  the  end,  are  lawful ;  and  the 
Judicial  department  cannot  inquire  into  the  degree 
of  their  necessity,  without  infringing  upon  the  juris- 
diction of  the  Legislature. 

827.  The  next  provision  for  giving  effect  to  the 
Powers  of  the  General  Government,  is, 

II.  The  declaration  that  the  "  Constitution,  and 
the  Laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  Trea- 
ties made,  or  which  shall  be  made,  under 
the  authority  of  the  United  States,  shall  be 
the  Supreme  Law  of  the  land  ;  and  the 
Judges  in  every  State  shall  be  bound  there- 
by, any  thing  in  the  Constitution  or  Laws 
of  any  State  to  the  contrary  notwithstand- 
ing." 


CHAP.  VI.  SUPREME  LAW.  209 

828.  The  propriety  of  this  clause  arises  from  the 
nature  of  the  Constitution,  in  establishing  a  National 
Government  with  certain  limited  powers  ;  as  such  a 
Government  could  not  exist  or  operate  effectually  on 
individuals,  unless  it  were  supreme  in  the  exercise  of 
those  powers. 

829.  In  all  cases  where  the  powers  remaining  in 
the  States,  are  so  exercised  as  to  come  in  conflict 
with  those  vested  in  the  National  Government,  it  is  a 
vital  principle  of  perpetual  operation,  that  the  power 
which  is  not  supreme  must  yield  to  that  which  is. 

830.  In  a  complex  system,  like  that  created  by 
the  relation  between  the  Federal  and  State  Govern- 
ments, measures  adopted  respectively  by  the  Union 
and  by  the  States,  to  execute  the  acknowledged  pow- 
ers of  each,  must  often  be  of  the  same  description, 
and  sometimes  interfere  in  their  operation. 

831.  The  States  may  enact  Laws,  the  validity  of 
which  may  depend  on  their  not  interfering  with,  or 
being  contrary  to,  an  Act  of  Congress  passed  in  pur- 
suance of  its  constitutional  powers ;  and  in  all  such 
cases  the  inquiry  is,  whether  the  State  'Law  has,  in 
its  application,  come  into  collision  with  the  Act  of 
Congress. 

832.  If  an  actual  collision  be  found  to  have  taken 
place  between  a  State  Law  and  an  Act  of  Congress, 
it  is  immaterial  whether  the  former  were  passed  by 
the  State  Legislature,  in  virtue  of  a  concurrent  power 
with  Congress,  or  in  virtue  of  a  distinct  and  inde- 
pendent poWer,  relating  to  a  different  subject ;  as  in 
either  case,  the  State  Law,  and  the  rights  and  privi- 
leges claimed  under  it,  must  yield  to  rights  and  privi- 
leges derived  from  the  Act  of  Congress. 

833.  Although  the  Government  of  the  Union,  in 


210  AUXILIARY  POWERS.  PART  IS, 

the  exercise  of  its  express  powers,  may  use  mean* 
which  may  also  be  employed  by  a  State  in  the  exer- 
cise of  its  acknowledged  powers ;  yet  this  implies  no 
claim,  on  the  part  of  the  United  States,  of  a  direct 
power,  identical  with  the  authority  exercised  by  the 
State. 

834.  So  also,  if  a  State,  in  passing  Laws  on  sub- 
jects acknowledged  to  be  within  its  control,  adopts  a 
measure  of  the  same  character  with  one  which  Con- 
gress may  adopt  in  the  execution  of  any  of  its  enume- 
rated powers,  the  State  in  that  case,  does  not  derive 
its  authority  from  the  residuum  which  it  retains  of  the 
particular  power  granted  to  Congress  ;  but  from  some 
other  power  which  remains  in  the  State,  and  which 
may  be  executed  by  the  same  means  which  are  used 
for  the  execution  of  the  distinct  power  vested  in  the 
Union. 

835.  The  same   measures,  or  measures  scarcely 
distinguishable  from  each  other,  may  flow  from  dis- 
tinct powers  in  the  General  and  State  Governments  -T 
but  this  does  not  establish  the  identity  of  the  powers: 
and  although  the  means  used  in  their  execution  by 
each  Government  respectively,  may  someti'mes  ap- 
proach so  nearly  as  to  be  confounded  with  each  other, 
yet  under  other  circumstances,   they   may   appear 
sufficiently  distinct  to  establish  the  individuality  of  the 
powers  to  which  they  are  subservient* 

836.  Questions  respecting  the  extent  of  the  powers 
actually  granted,  and  their  identity  with  those  retain- 
ed by  the  States,  are  perpetually  arising  in  a  judicial 
form  ;  and  in  discussing  them,  the  conflicting  autho- 
rities of  the  General  and  State  Governments  must  be 
brought  into  view,  and  the  supremacy  settled  by  that 
power  in  the  Government  which  was  created  for  the 
purpose  of  expounding  the  Constitution,  as  well  as  the 
Laws. 


CHAP.  VI.  SUPREME  LAW.  211 

837.  From  this  declaration  of  the  supremacy  of 
the  Constitution,  Laws,  and  Treaties  of  the  United 
States,  arises  the  duty  of  Courts  of  Justice  to  declare 
void  any  part  of  any  State  Constitution,  or  Law, 
which  is  repugnant  to  THE  SUPREME  LAW  OF  THE  LAND. 

838.  In  virtue  of  this  provision,  the  Constitution 
and  Laws  of  several  of  the  States  have,  in  a  variety 
of  cases,  been  declared  void  by  the  Judicial  Power, 
ontheground  of  their  repugnancy  to,orincompatibility 
with,  the  Constitution,  Laws,  or  Treaties  of  the  United 
States. 

839.  In  all  cases  of  actual  collision  between  the 
authority  of  a  State,  and  the  constitutional  power  of 
the  United  States,  the  State  is  bound  by  the  construc- 
tion of  the  Federal  Government  relative  to  its  own 
powers  ;  and  no  State  has  authority,  either  by  an  Act 
of  ordinary  legislation,  or  by  a  fundamental  Law,  to 
declare  void  a  Law  of  the  United  States,  or  suspend 
its  operation  within  the  territorial  jurisdiction  of  the 
State. 

840.  .The  State  Courts  may,  in  the  ordinary  course 
of  administering  justice,   pronounce  a  Law  of  the 

,  United  States,  or  an  authority  exercised  under  the 
National  Government,  to  be  void,  as  repugnant  to 
the  Federal  Constitution  ;  but  this  power  is  exercised 
subject  to  the  appeal  which  lies  in  all  such  cases  to 
the  supreme  National  tribunal,  whose  decision  alone 
is  final  and  conclusive. 

841.  The  early  legislation  of  Congress,  and  the 
course  of  Judicial  decisions  since  the  Judiciary  Act  of 
1789,  concur  in  the  recognition  of  this  Supreme  Law, 
and  of  a  final  interpreter  of  the  Constitution,  created 
by  the  Constitution  itself,  to  the  exclusion  of  the  au- 
thority and  jurisdiction  of  the  several  States. 


212  AUXILIARY  POWERS.  PART  II. 

842.  As  the  Government  of  the  Union  exists  over 
all  the  States,  and  operates  upon  individuals,  it  must, 
to  the  extent  of  its  limited  powers,  possess  the  au- 
thority of  final  decision  on  all  questions  of  conflicting 
jurisdiction,  by  necessary  implication,  independently  of 
the  express  grant ;  as  it  is  a  power  which  on  general 
principles,  is  inherent  in  all  Governments. 

843.  As  the  Government  of  the  Union  has  a  Le- 
gislative and  an  Executive  department  of  its  own,  and 
a  Judiciary  department  with  jurisdiction  co-extensive 
with  the  Legislative  Power ;  each  of  these  depart- 
ments must,  from  the  nature  of  the  powers  vested  in 
it,  be  supreme  within  the  limits  of  those  powers ;  and 
must  necessarily  judge,  independently  of  State  con- 
trol, of  the  extent  of  its  own  powers,  as  often  as  it  is 
called  on  to  exercise  them,  or  it  cannot  act  at  all. 

844.  Amongst  the  provisions*for  giving  efficacy  to 
the  Legislative  Powers  of  the  Union,  may  be  includ- 
ed, 

III.  Those  specially  vested  in  the  Executive  and 
Judicial  departments,  and  particularly  the 
provision  extending  the  jurisdiction  of  the 
National  Judiciary  to  all  cases  arising  under 
the  Constitution  of  the  United  States. 

845.  This  last  provision  in  effect .  creates,  in  the 
supreme  Judicial  authority  of  the  Union,  a  common 
arbiter  in  all  cases  of  collision  between  the  power 
and  authority  of  the  Union,  and  of  the  several  States, 
wherevever  the  controversy  assumes  a  judicial  form. 

846.  Such  collisions  have  occurred  in  times  of  no 
extraordinary  commotion,  and  have  hitherto  been 
adjusted  by  the  operation  of  this  power;  but  it  was 
intended  to  afford  to  the  Constitution,  the  perpetual 
means  of  self-preservation,  and  to  secure  the  execu- 


CHAP.  VI.     OATH  TO  SUPPORT  CONSTITUTION.  213 

tion  of  the  Laws  of  the  Union,  against  other  perils 
than  those  of  common  occurrence. 

847.  For  this  purpose  a  distinct  and  independent 
Judicial  department  was  erected  for  the  Union,  and 
power  was  conferred  on  it  to  construe  the  National 
Constitution  and  Laws  in  the  last  resort,  in  every  case 
in  which  questions  of  construction  might  arise,  and 
to  preserve  the  Constitution,  and  the  Laws  and  Trea- 
ties of  the  United  States,  from  violation,  so  far  as  judi- 
cial decisions  might  avail  for  that  purpose. 

848.  In  addition  to  this  provision,  powers  neces- 
sary and  proper  to  carry  into  effect  the  Judgments 
and  Decrees  of  the  Federal  Courts,  are  conferred  on 
the  Chief  Executive  Magistrate,  either  directly  by 
the  Constitution  itself,  or  indirectly,  by  vesting  in  the 
Legislative  department,  authority  to  confer  it,  which 
power  has  been  duly  executed  by  Congress. 

849.  Another  provision  for  giving  efficacy  to  the 
powers  of  the  National  Government,  is  found  in 

IV.  The  article  requiring  "  the  Senators  and 
Representatives  in  Congress,  and  the  mem- 
bers of  the  several  State  Legislatures,  and 
all  Executive  and  Judicial  officers,  both  of 
the  United  States  and  of  the  several  States, 
to  be  bound  by  oath  or  affirmation  to  sup- 
port the  Constitution  of  the  United  States," 

850.  As  the  election  of  the  President,  Vice  Presi- 
dent, and  Senators  depends  in  all  cases,  and  that  of 
the  House  of  Representatives  depended  in  the  first 
instance,  and  still,  in  fact,  depends,  on  the  Legislatures 
of  the  several  States,  it  was  necessary,  in  order  to 
insure  the  stability  of  the  General  Government,  to 
provide  a  sanction  similar  to  that  relied  on  for  the 
continuance  of  the  State  Governments ;  and  to  obtain 


214  AUXILIARY  POWERS.  PART  II. 

by  an  appeal  to  the  consciences  of  individuals,  an 
equal  security  in  both  cases. 

851.  No  State  Power  can  discharge  any  individual 
from  the  obligation  of  this  oath ;  and  no  member  of 
a  State  Legislature  can  refuse  to  proceed  at  the  ap- 
pointed time,  to  elect  Senators  in  Congress,  or  to 
provide  for  the  election  of  Electors  of  President  and 
Vice  President,  or  of  Representatives  in  Congress, 
•without  a  violation  of  his  duty,  and  of  the  oath  to  en- 
force its  performance. 

852.  It  is  not,  therefore,  a  matter  of  discretion 
with  the  States,  whether  they  will  continue  the  Na- 
tional Government,  or  break  it  up,  by  refusing  to  ap- 
point Senators,  or  preventing  the  choice  of  Electors 
or  Representatives ;  and  although  it  were  true  that 
the  Legislative  powers  of  the  Union  would  be  sus- 
pended, if  the  States,  or  a  majority  of  them,  were  to 
neglect  to  choose  Senators  ;  yet  if  any  number  of 
States  less  than  a  majority,  should  omit  to  elect  them, 
Congress  would  not  on  that  account,  be  the  less  capa- 
ble of  performing  all  its  functions. 

853.  The  last  provision  contained  in  the  Constitu- 
tion for  giving  effect  to  its  powers,  is  that  by  which 
operation  was  given  to  the  whole  system,  by  declar- 
ing* 

V.  That  "  the  ratifications  of  the  Conventions 
of  nine  States  should  be  sufficient  for  the 
establishment  of  the  Constitution  between 
the  States  ratifying  the  same." 

854.  The  express  authority  of  the  People  them- 
selves was  required  to  give  validity  to  a  Constitution 
which  was  to  operate  upon  them  as  individuals  ;  but 
to  have  required  the  unanimous  ratification  of  the 
several  States,  would  have  subjected  the  essential 


CHAP.  VI.  ADOFT10N  OF  CONSTITUTION.  215 

interests  of  the  whole  to  the  caprice  or  corruption  of 
the  smallest  minority. 

855.  A  question,  however,  of  a  very  delicate  na- 
ture arose  with  respect  to  this  article,  when  the  Con- 
stitution was  proposed  to  the  People  for  adoption,  in 
consequence  of  the  doubt  entertained  by  some,  whe- 
ther the  Confederation,  which  stood  in  the  solemn 
form  of  a  Compact  between  the  States,  could  be  su- 
perseded without  the  unanimous  consent  of  the  par- 
ties to  that  instrument. 

856.  It  was  not  pretended  that  an  individual  State 
could  withdraw  from  that  compact,  considered  as 
a  league  or  treaty,  at  its  mere  pleasure  or  discretion, 
nor  be  absolved  from  its  perpetual  obligation,  except 
on  the  ground  of  the  extreme  necessity  of  self-pre- 
servation, or  of  a  breach  or  violation  of  the  compact 
by  some  other  of  the  parties ;  of  which  breach  or  vio- 
lation the  parties  themselves  claimed  to  be  judges 
only  from  the  nature  of  the  Confederation  as  a  Treaty 
between  independent  Sovereignties. 

857.  The  Convention  which  framed  the  Constitu- 
tion was  elected  by  the  State  Legislatures,  and  the 
instrument  which  came  from  their  hands  was  a  mere 
proposal  without  any  pretensions  to  actual  obligation  ; 
as  such,  it  was  reported  to  the  former  Congress,  to  be 
by  them  "  submitted  to  a  Convention  of  delegates  to 
be  chosen  in  each  State  by  the  people  thereof,  under 
the  recommendation  of  its  Legislature,  for  their  assent 
and  ratification." 

858.  This  course  of  proceeding  was  adopted,  and 
the  proposed  form  of  Government  was  accordingly 
submitted  to  the  People,  who  acted  upon  it  in  the 
only  mode  in  which  they  could  safely  and  effectually 
act  on  such  an  occasion,  by  assembling  for  the  pur- 
pose, in  their  respective  Conventions. 


216  AUXILIARY  POWERS.  PART  II. 

859.  They  assembled  in  their  respective  States, 
not  merely  for  greater  convenience,  but  from  the 
necessity  and  propriety  of  the  case,  as  there  existed 
no  authority  under  the  Confederation  for  calling  a 
general  Convention  of  the   People   of  the  United 
States  ;  and  if  such  authority  had  existed,  it  would 
not  have  been  a  proper  mode  of  assembling  the  Peo- 
ple on  an  occasion  in  which  they  were  in  effect,  to 
pass  on  virtual  amendments  of  their  State  Constitu- 
tions. 

860.  Although  the  People  of  each  State  exercised 
a  separate  and  independent  voice,  in  the  ratification 
of  the   Federal   Constitution  ;    it  was   nevertheless 
adopted  by  the  People  themselves,  and  not  by  the 
State  Governments  ;  and  it  derives  its  binding  force 
solely  from  the   act  of  the  People  in  their  State 
Conventions. 

861.  The  Instrument  submitted  to  them,  purports 
on  its  face  to  proceed  from  the  People  of  the  United 
States  ;  as  such,  it  was  adopted  :  and  if  the  People  of 
the  several  States  had  never  before  acquired  a  com- 
mon character,  they  expressly  assumed  it,  on  that  oc- 
casion. 

862.  The  assent  of  the  State  Governments  is  im- 
plied, if  not  expressed,  in  their  calling  the  Conven- 
tions and  submitting  the  Constitution  to  the  consi- 
deration of  the  People  ;  but  the  People  of  each  State 
were  at  perfect  liberty  to  accept  or  reject  it,  and 
their  act  was  final : — the  Constitution   required  not 
the  affirmance  of  the  State  Governments,  and  could 
not  be  negatived  by  them  ;  but  when  adopted  by  the 
People,  it  became  of  complete  obligation,  and  bound 
the  States. 

863.  The  same  respective  Sovereignties,  which  had 
separately  established  the  State  Governments,  united 


CHAP.  VI.      OF  INTERPRETING  CONSTITUTION.  217 

with  each  other  in  forming  a  paramount  Sovereignty, 
and  establishing  a  Supreme  Government ;  for  which 
purpose  each  yielded  a  portion  of  its  individual  Sove- 
reignty, and  modified  its  State  Constitution,  by  ren» 
dering  it  subordinate  to  the  Federal  Power. 

864.  As  the  powers  delegated  to  the  State  Go- 
vernments by  their  Constitutions,  were  delegated  by 
the  People  themselves,  and  not  by  a  distinct  and  inde- 
pendent Sovereignty  created  by  their  act,  those  Go- 
vernments were  only  competent  to  form  a  league 
like  the  Confederation  ;  and  when  it  was  proposed  to 
change  that  league  into  an  effective  Government, 
operating  directly  on  the  People  as  individuals,  it  be- 
came necessary  to  derive  its  powers  directly  from 
the  People  themselves. 

865.  As  the  Government  of  the  Union  is  then 
emphatically  and  truly  a  Government  of  the  People  ; 
as  in  form  and  substance  it  emanates  from  them  ;  as 
its  powers  are  granted  by  them,  and  are  to  be  exer- 
cised  on   them  directly  and   individually,  for  their 
common  benefit ;  it  cannot  be  abolished,  nor  its  pow- 
ers abrogated,  except  by  their  consent. 

866.  As  the  Constitution  of  the   United   States 
forms  a  union  between  the  People  of  the  several 
States  intended  to  be  perpetual,  and  establishes  a 
National  Government  owing  protection  to  individu- 
als, and  entitled  to  their  obedience,  no  State  can  dis- 
solve the  relations  subsisting  between  that  Govern- 
ment, and  the  individuals  subjected  to  its  authority ; 
unless  the  respective  States  retain  power  under  the 
Federal  Constitution  to  settle  for  themselves  its  con- 
struction in  all  doubtful  cases. 

867.  But  as  no  individual  can  judge  for  himself, 
and  decide  in  his  own  case  upon  the  nature  and  ex- 

T 


218  AUXILIARY  POWERS.  PART  II, 

tent  of  his  obligations  as  a  Citizen  of  the  Union,  so 
the  State  within  whose  jurisdiction  he  resides,  cannot 
judge  for  him  ;  neither  can  it  finally  judge  for  itself 
of  any  alleged  violation  of  the  Constitution,  and  ex- 
ecute its  decisions  by  its  own  power ;  as  there  is  a 
Power  created  by  the  Constitution,  both  by  impli- 
cation from  the  nature  of  the  Government  which  it 
establishes,  and  by  express  grant,  which  controls  the 
decisions  of  every  State,  and  prevents  its  construc- 
tion of  the  Federal  Constitution  from  being  conclu- 
sive. 

868.  A  State,  therefore,  having  no  power  to  in- 
terpret  the  Constitution  finally  for  itself,  cannot  se- 
cede from  the  Union  without  adopting  a  proceeding 
essentially  revolutionary  in  its  character  ;  and  every 
attempt  by  a  State  to  abrogate  or  annul  a  Law  of  the 
United  States,  is  not  only  a  usurpation  of  the  powers 
of  the  General  Government,  but  an  aggression  upon 
the  equal  rights  of  the  other  individual  States. 

869.  From  this  examination  of  the  fundamental 
principles,  organization,  and  powers  of  the  Govern- 
ment of  the  United  States,  it  results : — 

1.  That  the  Federal  Constitution  was  erected 

on  the  basis  of  those  inalienable  rights  which 
the  People  of  the  several  States  derive,  in 
common  with  all  mankind,  from  their  Crea- 
tor ;  and  of  those  principles  and  institutions 
which  they  had  inherited  from  their  ances- 
tors, as  subjects  of  the  British  Crown  ;  mo- 
dified by  their  situation  and  circumstances 
as  Colonists,  and  by  their  successful  vindi- 
cation of  their  natural  rights,  in  the  assertion 
of  their  independence. 

2.  That  it  was  formed  on  the  Republican  prin- 

ciple of  representation ;  in  due  regard  to 
which,  the  powers  of  Government  were 


CHAP.   VI.  CONCLUSION. 

separately  delegated,  and  properly  distri- 
buted to  the  Legislative,  Executive,  and 
Judicial  departments,  as  each  being  equally 
the  representative  of  the  People,  and  cho- 
sen directly  or  indirectly  by  that  portion  of 
them,  who  from  age,  sex,  or  other  circum- 
stances, are  competent  to  be  entrusted  with 
the  exercise  of  that  Power. 

3.  That  the  Federal  Constitution  was  adopted 

by  the  People  themselves,  and  not  by  the 
assent  or  ratification  of  the  State  Govern- 
ments ;  and  establishes  a  Government  pro- 
per, operating  upon  every  individual  resid- 
ing under  its  protection. 

4.  That    this   Government    extends   over    the 

Union,  as  one  National  community  or  body 
politic  ;  composed,  not  only  of  the  people 
of  the  States,  but  to  a  certain  degree  of  the 
States  themselves,  for  the  purpose  of  in- 
vesting the  States,  as  well  as  the  People, 
with  one  National  character. 

5.  That  as  the  Union,  thus  formed,  constitutes 

the  Nation,  the  People  of  the  several  States 
have,  for  all  the  purposes  of  the  Constitu- 
tion, become  one  People,  owing  local  alle- 
giance to  the  States  in  which  they  reside — • 
paramount  allegiance  to  the  National  Go- 
vernment. 

,  6.  That  all  the  Powers  requisite  to  secure  the 
objects  of  National  Union,  are  vested  in  the 
General  Government ;  whilst  those  only 
which  are  not  essential  to  that  object,  are 
reserved  to  the  States,  or  to  the  People. 
7.  That  the  National  Government,  though  limit- 
ed in  its  powers  to  National  objects,  is  su- 
preme in  the  exercise  of  those  powers — 
whether  express  or  implied,  exclusive  or 
concurrent,  enumerated  or  auxiliary ;  and 


220  CONCLUSION.  PAR?  it, 

that  whenever  any  of  those  powers  come 
into  collision  with  the  concurrent,  or  dis- 
tinct and  independent  Powers  of  the  States, 
the  State  Power,  which  is  subordinate, 
must  yield  to  the  National  Power,  which  is 
supreme. 

8.  That  the  Constitution  and  Laws  of  the  United 

States,  and  Treaties  made  under  the  autho- 
rity of  the  National  Government,  are  the 
Supreme  Law  of  the  land ;  and  that  both 
from  the  nature  of  the  case,  and  the  provi- 
sions of  the  Constitution,  the  National  Le- 
gislature must  judge  of,  and  finally  interpret 
the  Supreme  Law,  as  often  as  it  exercises 
acts  of  legislation ;  that  the  Chief  Executive 
Magistrate  in  like  manner  possesses  the 
power  of  judging  of  the  nature  and  extent 
of  his  political  authority,  as  often  as  he  is 
called  on  to  exercise  it ;  and  that  in  all  cases 
assuming  the  character  of  a  suit  in  Law  or 
Equity,  the  Supreme  Judicial  tribunal  of 
the  Union,  is  the  final  interpreter  of  the 
Constitution. 

9.  That  no  State  authority  has  power  to  dissolve 

the  relations  existing  between  the  Govern- 
ment of  the  United  States,  and  the  People 
of  the  several  States  ;  and  consequently, 
that  no  State  has  a  right  to  secede  from  the 
Union,  except  under  such  circumstances  as 
would  justify  a  Revolution  in  the  Govern- 
ment ;  and  that  an  attempt  by  any  State  to 
abrogate  or  annul  an  act  of  the  National 
Legislature,  is  a  direct  usurpation  of  the 
powers  of  the  General  Government,  an  in- 
fringement on  the  rights  of  all  the  other 
States,  and  a  plain  violation  of  the  para- 
mount obligation  of  its  members,  to  support 
and  obey  the  Constitution  of  the  United 
States. 


CHAP.  VI.  CONCLUSION.  221 

870.  Unless  such  were  the  principles  and  charac- 
ter of  the  Federal  Constitution,  it  would  not  have  de- 
livered the  People  of  the  United  States  from  the 
evils  they  experienced  under  the  Confederation  ;  nor 
have  accomplished,  as  it  has  hitherto,  most  eflfectually 
and  happily,  the  great  ends  for  which  it  was  ordain- 
ed,  by  "  FORMING  A  MORE  PERFECT  UNION,  ESTABLISH- 
ING JUSTICE,  INSURING  DOMESTIC  TRANQUILLITY,  PRO- 
VIDING FOR  THE  COMMON  DEFENCE  AND  GENERAL  WEL- 
FARE, AND  SECURING  THE  BLESSINGS  OF  LIBERTY  TO 
THEM,  AND  THEIR  POSTERITY." 


APPENDIX. 


CONSTITUTION  OF  THE  UNITED  STATES. 

The  Constitution  framed  for  the  United  States  of  America^  by 
a  Convention  of  deputies  from  the  States  of  New  Hampshire, 
Massachusetts,  Connecticut,  Neva  York,  New  Jersey,  Penn- 
sylvania, Delaware,  Maryland,  Virginia,  North  Carolina, 
South  Carolina,  and  Georgia,  at  a  Session  begun  May  25,  and 
ended  September  17,  1787. 

WE,  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  establish  justice,  ensure  domestic  tranquillity, 
provide  for  the  common  defence,"  promote  the  general  welfare, 
and  secure  the  blessings  of  liberty  to  ourselves  and  our  posteri- 
ty, do  ordain  and  establish  this  Constitution  for  the  United  States 
of  America. 

ARTICLE  I. 

SECT10IT   I. 

All  legislative  powers  herein  granted  shall  be  vested  in  a  con- 
gress of  the  United  States,  which  shall  consist  of  a  senate  and 
house  of  representatives. 

SECTION  ii. 

I.  The  house  of  representatives  shall  consist  of  members 
chosen  every  second  year,  by  the  people  of  the  several  states  : 
and  the  electors  in  each  state  shall  have  the  qualifications  requi- 
site for  electors  of  the  most  numerous  branch  of  the  state  legis- 
lature. 

II.  No  person  shall  be  a  representative,  who  shall  not  have 
attained  to  the  age  of  twenty-five  years,  and  been  seven  years  a 
citizen  of  the  United  States ;  and  who  shall  not,  when  elected, 
be  an  inhabitant  of  that  state  in  which  he  shall  be  chosen. 

III.  Representatives  and  direct  taxes,  shall  be  apportioned 
among  the  several  states,  which  may  be  included  within  this 
union,  according  to  their  respective  numbers,  which  shall  be 
determined  by  adding  to  the  whole  number  of  free  persons,  in- 
cluding those  bound  to  service  for  a  term  of  years,  and  exclud- 
ding  Indians  not  taxed,  three-fifths  of  all  other  persons.     The 
actual  enumeration  shall  be  made  within  three  years  after  the 


224  APPENDIX. 

first  meeting1  of  the  congress  of  the  United  States  ;  and  within 
every  subsequent  term  of  ten  years,  in  such  manner  as  they 
shall  by  law  direct.  The  number  of  representatives  shall  not 
exceed  one  for  every  thirty  thousand  :  but  each  state  shall 
have  at  least  one  representative  :  and,  until  such  enumeration 
shall  be  made,  the  state  of  New  Hampshire  shall  be  entitled  to 
choose  three  ;  Massachusetts  eight ;  Rhode  Island  and  Provi- 
dence pfantations  one  ;  Connecticut  five  ;  New  York  six ;  New 
Jersey  four  ;  Pennsylvania  eight  ;  Delaware  one  :  Maryland 
six;  Virginia  ten ;  North  Carolina  five  ;  South  Carolina  five  ; 
and  Georgia  three. 

IV.  When  vacancies  happen  in  the  representation  from  any 
state,  the  executive  authority  thereof  shah1  issue  writs  of  elec- 
tion to  fill  such  vacancies. 

V.  The  house  of  representatives  shall  choose  their  speaker 
and  other  officers  ;  and  shall  have  the  sole  power  of  impeach- 
ment. 

SECTION    111. 

I.  The  senate  of  the  United  States-  shall  be  composed  of  two 
senators  from  each  state,  chosen  by  the  legislature  thereof,  for 
six  years  ;  and  each  senator  shall  have  one  vote. 

II.  Immediately  after  they  shall  be  assembled,  in  consequence 
of  the  first  election,  they  shall  be  divided,  as  equally  as  may  be, 
into  three  classes.     The  peats  of  the  senators  of  the  first  class 
shall  be  vacated  at  the  expiration  of  the  second  year  ;  of  the 
second  class,  at  the  expiration  of  the  fourth  year  ;  and  of  the 
third  class,  at  the  expiration  of  the  sixth  year :  so  that  one  third 
may  be  chosen  every  second  year.     And  if  vacancies  happen, 
by  resignation  or  otherwise,  during  the  recess  of  the  legislature 
of  any  state,  the  executive  thereof  may  make  temporary  ap- 
pointments until  the  next  meeting  of  the  legislature,  which  shall 
then  fill  such  vacancies. 

III.  No  person  shall  be  a  senator,  who  shall  not  have  attained 
to  the  age  of  thirty  years,  and  been  nine  years  a  citizen  of  the 
United  States  ;  and  who  shall  not,  when  elected,  be  an  inhabit- 
ant of  that  state  for  which  he  shall  be  chosen. 

IV.  The  vice-president  of  the  United  States  shall  be  pre- 
sident of  the  senate,  but  shall  have  no  vote  unless  they  be  equal- 
ly divided. 

V.  The  senate  shall  choose  their  other  officers,  and  also  a 
president  pro  tempore  in  the  absence  of  the  vice-president,  or 
when  he  shall  exercise  the  office  of  president  of  the  United 
States. 

VI.  The  senate  shall  have  the  sole  power  to  try  all  impeach- 
ments.    When  sitting  for  that  purpose,  they  shall  be  on  oath  or 
affirmation.    When  the  president  of  the  United  Stales  is  triedy 


CONSTITUTION  OF  UNITED  STATES.  225 

the  chief  Justice  shall  preside  :  and  no  person  shall  be  convict- 
ed, without  the  concurrence  of  two  thirds  of  the  members  pre- 
sent. 

VII.  Judgment,  in  cases  of  impeachment,  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to  hold 
and  enjoy  any  office  of  honour,  trust,  or  profit,  under  the  Uni- 
ted States.  But  the  party  convicted  shall,  nevertheless,  be 
liable  and  subject  to  indictment,  trial,  judgment,  and  punish- 
ment according  to  law. 

SECTION  IV. 

I.  The  times,  places,  and  manner  of  holding  elections  for 
senators  and  representative*,  shall  be  prescribed  in  each  state  by 
the  legislature  thereof  :   but  the  congress  may,  at  any  time,  by 
law,  make  or  alter  such  regulations,  except  as  to  the  places  of 
choosing  senators. 

II.  The  congress  shall  assemble  at  least  once  in  every  year ; 
and  such  meeting  shall  be  on  the  first  Monday  in  December, 
unless  they  shall  by  law  appoint  a  different  day. 

SECTION  r. 

I.  Each  house  shall  be  the  judge  of  the  elections,  returns 
and  qualifications  of  its  own  members ;  and  a  majority  of  each 
shall  constitute  a  quorum  to  do  business ;  but  a  smaller  number 
may  adjourn  from  day  to  day,  and  may  be  authorized  to  compel 
the  attendance  of  absent  members,  in  such  manner,  and  under 
such  penalties  as  each  house  may  provide. 

II.  Each  house  may  determine  the  rules  of  its  proceedings  ; 
punish  its  members  for  disorderly  behaviour ;  and  with  the  con- 
currence of  two  thirds,  expel  a  member. 

III.  Each  house  shall  keep  a  journal  of  its  proceedings,  and, 
from  time  to  time,  publish  the  same,  excepting  such  parts  as 
may  in  their  judgment  require  secrecy  :  and  the  yeas  and  nays, 
of  the  members  of  either  house,  on  any  question,  shall,  at  tho 
desire  of  one-fifth  of  those  present,  be  entered  on  the  journal. 

IV.  Neither  house,  during  the  session  of  congress,  shall, 
without  the  consent  of  the  other,  adjourn  for  more  than  three 
days,  nor  to  any  other  place  than  that  iu  which  the  two  houses 
shall  be  sitting. 

SECTION  vi. 

I.  The  senators  and  representatives  shall  receive  a  compen- 
sation for  their  services,  to  be  ascertained  by  law,  and  paid  out 
of  the  treasury  of  the  United  States.  They  shall,  in  all  cases, 
except  treason,  felony,  and  breach  of  the  peace,  be  privileged 
from  arrest,  during  their  attendance  at  the  session  of  their  re- 
spective houses,  and  in  going  to,  and  returning  from  the  same. : 


226 


APPENDIX. 


for  any  speech  or  debate  in  either  house,  they  shall  not  be  ques- 
tioned in  any  other  place. 

II.  No  senator  or  representative  shall,  during-  the  time  for 
which  he  was  elected,  be  appointed  to  any  civil  office,  under  the 
authority  of  the  United  States,  which  shall  have  been  created, 
or  the  emoluments  of  which  shall  have  been  increased,  during 
such  time  ;  and  no  person  holding  any  office  under  the  United 
States  shall  be  a  member  of  either  house,  during  his  continu- 
ance in  office. 

SICTIOIf  VII. 

I.  All  bills,  for  raising  revenue,  shall  originate  in  the  house 
of  representatives  :  but  the  senate  shall  propose  or  concur  with 
amendments,  as  on  other  bills. 

II.  Every  bill,  which  shall  have  passed  the  house  of  represen- 
tatives and  the  senate,  shall,  before  it  become  a  law,  be  present- 
ed to  the  president  of  the  United  States.     If  he  approve  it,  he 
snail  sign  it :  but  if  not,  he  shall  return  it,  with  his  objections, 
to  that  house  in  which  it  shall  have  originated,  who  shall  enter 
the  objections  at  large  on  their  journal,  and  proceed  to  re-con- 
sider it.     If,   after  such  re-consideration,  two-thirds  of  that 
bouse  shall  agree  to  pass  the  bill,  it  shall  be  sent,  together  with 
the  objections,  to  the  other  house,  by  which  it  shall  likewise  be 
re-considered  :  and,  if  approved  by  two-thirds  of  that  house,  it 
shall  become  a  law.     But,  in  all  such  cases,  the  votes  of  both 
houses  shall  be  determined  by  yeas  and  nays  ;  and  the  names  of 
the  persons  voting  for  and  against  the  bill  shall  be  entered  on 
the  journal  of  each  house  respectively.     If  any  bill  shall  not 
be  returned  by  the  president  within  ten  days  (Sundays  except- 
ed)  after  it  shall  have  beea  presented  to  him,  the  same  shall  be 
a  law,  in  like  manner  as  if  he  had  signed  it,  unless  the  congress, 
by  their  adjournment,  prevent  its  return ;  in  which  case  it  shall 
not  be  a  law. 

III.  Every  order,  resolution  or  vote,  to  which  the  concur- 
rence of  the  senate  and  house  of  representatives  may  be  neces- 
sary (except  on  a  question  of  adjournment)  shall  be  presented 
to  the  president  of  the  United  States  ;  and,  before  the  same 
shall  take  effect,  be  approved  by  him  ;  or,  being  disapproved  by 
him,  shall  here-passed  by  two-thirds  of  both  houses,  according 
to  the  rules  and  limitations  prescribed  in  the  case  of  a  bill. 

SECTION  vin. 

The  congress  shall  have  power — 

I.  To  lay  and  collect  taxes,  duties,  imposts  and  excises,  to 
pay  the  debts  and  provide  for  the  common  defence  and  general 
welfare  of  the  United  States :  but  all  duties,  imposts,  and  ex- 
cises, shall  be  uniform  throughout  the  United  States. 


CONSTITUTION  OF  UNITED  STATES.  227 

II.  To  borrow  money  on  the  credit  of  the  United  States. 

III.  To  regulate  commerce  with  foreign  nations,  and  among 
the  several  states,  and  with  the  Indian  tribes. 

IV.  To  establish  a  uniform  rule  of  naturalization  ;  and  uni-  . 
form  laws  on  the  subject  of  bankruptcies,  throughout  the  United 
States. 

V.  To  coin  money  ;  to  regulate  the  value  thereof,  and  of  fo- 
reign coin  ;  and  fix  the  standard  of  weights  and  measures. 

VI.  To  provide  for  the  punishment  of  counterfeiting  the  secu- 
rities and  current  coin  of  the  United  States. 

VII.  To  establish  post  offices,  and  post  roads. 

VIII.  To  promote  the  progress  of  science  and  useful  arts,  by 
securing  for  limited  times,  to  authors  and  inventors,  the  exclu- 
sive right  to  their  respective  writings  and  discoveries. 

IX.  To  constitute  tribunals  inferior  to  the  supreme  court. 

X.  To  define  and  punish  piracies,  and  felonies  committed  on 
the  high  seas,  and  offences  against  the  law  of  nations. 

XI.  To  declare  war  ;  grant  letters  of  marque  and  reprisal ; 
and  make  rules  concerning  captures  on  land  and  water. 

XII.  To  raise  and  support  armies.     But  no  appropriation  of 
money  for  that  use  shall  be  for  a  longer  term  than  two  years. 

XIII.  To  provide  and  maintain  a  navy. 

XIV.  To  make  rules  for  the  government  and  regulation  of 
the  land  and  naval  forces. 

XV.  To  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections,  and  repel  invasions. 

XVI.  To  provide  for  organizing,  arming,  and  disciplining 
the  militia,  and  for  governing  such  part  of  them  as  may  be  em- 
ployed in  the  service  of  the  United  States  ;  reserving  to  the 
states  respectively  the  appointment  of  the  officers,  and  the  au- 
thority of  training  the  militia  according  to  the  discipline  pre- 
scribed by  congress. 

X VJ  I.  To  exercise  exclusive  legislation,  in  all  cases  whatso- 
ever, over  such  district  (not  exceeding  ten  miles  square)  as 
may,  by  cession  of  particular  states,  and  the  acceptance  of 
congress,  become  the  seat  of  the  government  of  the  United 
States  ;  and  to  exercise  like  authority  over  all  places  purchased 
by  the  consent  of  the  legislature  of  the  state  in  which  the  same 
shall  be,  for  the  erection  of  forts,  magazines,  arsenals,  dock- 
yards, and  other  needful  buildings  ;  and 

XVIII.  To  make  all  laws  which  shall  be  necessary  and  pro- 
per for  carrying  into  execution  the  foregoing  powers,  and  all 
other  powers  vested  by  this  constitution  in  the  government  of 
the  United  States,  or  any  department  or  office  thereof. 

SECTION  IX. 

I.  The  migration  or  importation  of  such  persons  as  any  of 


228  APPENDIX. 

the  slates  now  existing-  shall  think  proper  to  admit,  shall  not  be 
prohibited  by  the  congress,  prior  to  the  year  one  thousand  eight 
hundred  and  eight  ;  but  a  tax  may  be  imposed  on  such  impor- 
tation, not  exceeding  ten  dollars  for  each  person. 

II.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be 
suspended,  unless  when,  in  cases  of  rebellion  or  invasion,  the 
public  safety  may  require  it. 

III.  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

IV.  No  capitation  or  other  direct  tax  shall  be  laid,  unless  in 
proportion  to  the  census  or  enumeration  herein  before  directed 
to  be  taken. 

V.  No  tax  or  duties  shall  be  laid  on  articles  exported  from 
any  state.     No  preference  shall  be  given,  by  any  regulation  of 
commerce  or  revenue,  to  the  ports  of  one  state,  over  those  of 
another  :  nor  shall  vessels  bound  to  or  from  one  state,  be  oblig- 
ed to  enter,  clear,  or  pay  duties  in  another. 

VI.  No  money  shall  be  drawn  from  the  treasury,  but  in  con- 
sequence of  appropriations  made  by  law  ;  and  a  regular  state- 
ment and  account  of  the  receipts  and  expenditures  of  all  pub- 
lic money  shall  be  published  from  time  to  time. 

VJI.  No  title  of  nobility  shall  be  granted  by  the  United 
States  :  and  no  person,  holding  any  office  of  profit  or  trust  un- 
der them,  shall,  without  the  consent  of  congress,  accept  of  any 
present,  emolument,  office,  or  title,  of  any  kind  whatever,  from 
any  king,  prince,  or  foreign  state. 

SECTION  x. 

I.  No  state  shall  enter  into  any  treaty,  alliance,  or  confedera- 
tion ;  grant  letters  of  marque  and  reprisal ;  coin  money  ;  emit 
bills  of  credit ;  make  any  thing  but  gold  and  silver  coin  a  ten- 
der in  payment  of  debts  ;  pass  any  bill  of  attainder,  ex  post 
facto  law,  or  law  impairing  the  obligation  of  contracts,  or  grant 
any  title  of  nobility. 

II.  No  state  shall,  without  the  consent  of  congress,  lay  any 
imposts  or  duties  on  imports  or  exports,  except  what  may  be  ab- 
solutely necessary  for  executing  its  inspection  laws  ;  and  the 
net  produce  of  all  duties  and  imposts  laid  by  any  state  on  im- 
ports or  exports,  shall  be  for  the  use  of  the  treasury  of  the 
United  States  ;  and  all  such  laws,  shall  be  subject  to  the  revision 
and  control  of  congress.     No  state  shall,  without  the  consent 
of  congress,  lay  any  duty  on  tonnage,  keep  troops,  or  ships  of 
war  in  time  of  peace,  enter  into  any  agreement  or  compact 
with  another  state,  or  with  a  foreign  power,  or  engage  in  war, 
unless  actually  invaded,  or  in  such  imminent  danger  as  will  not 
admit  of  delay. 


<CONS1ttTtfTION  OF  UNITED  STATES.  229 


ARTICLE  II. 

SECTION  1. 

I.  The  executive  power  shall  be  vested  in  a  president  of  the 
United  States  of  America.     He  shall  hold  his  office  during  the 
term  of  four  years,  and,  together  with  the  vice-president,  chosen 
for  the  same  term,  be  elected  as  follows. 

II.  Each  state  shall  appoint,  in  such  manner  as  the  legislature 
thereof  may  direct,  a  number  of  electors,  equal  to  the  whole 
number  of  senators  and  representatives,  to  which  the  state  may 
be  entitled  in  the  congress.     But  no  senator  or  representative, 
or  person  holding  any  office  of  trust  or  profit  under  the  United 
States,  shall  be  appointed  an  elector. 

III.  The  electors  shall  meet  in  their  respective  states,  and 
vote  by  ballot  for  two  persons,  one  of  whom  at  least,  shall  not 
be  an  inhabitant  of  the  same  state  with  themselves.     And  they 
shall  make  a  list  of  all  the  persons  voted  for,  and  of  the  number 
of  votes  for  each  ;  which  list  they  shall  sign  and  certify,  and 
transmit,  sealed,  to  the  seat,  of  the  government  of  the  United 
States,  directed  to  the  president  of  the  senate.    The  president  of 
the  senate  shall  in  the  presence  of  the  senate  and  house  of  re- 
presentatives, open  all  the  certificates,  and  the  votes  shall  then 
be  counted.     The  person  having  the  greatest  number  of  votes 
shall  be  the  president,  if  such  number  be  a  majority  of  the 
whole  number  of  electors  appointed  ;  and  if  there  be  more  than 
one  who  have  such  majority,  and  have  an  equal  number  of 
votes,   then  the    house   of  representatives   shall   immediately 
choose  by  ballot  one  of  them  for  president ;  and  if  no  person 
have  a  majority,  then,  from  the  five  highest  on  the  list  the  said 
house  shall  in  like  manner  choose  the  president.     But  in  choos- 
ing the  president,  the  votes  shall  be  taken  by  states,  the  repre- 
sentation from  each  state  having  one  vote  :  a  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from  two-thirds 
of  the  states  :  and  a  majority  of  all  the  states  shall  be  neces- 
sary to  a  choice.     In  every  case,  after  the  choice  of  the  pre- 
sident, the  person  having  the  greatest  number  of  votes  of  the 
electors,  shall  be  the  vice-president.     But  if  there  should  re- 
main two  or  more  who  have  equal  votes,  the  senate  shall  choose 
from  them,  by  ballot,  the  vice-president. 

IV.  The  congress  may  determine  the  time  of  choosing  elec- 
tors, and  the  day  on  which  they  shall  give  their  votes  ;  which 
day  shall  be  the  same  throughout  the  United  States. 

V.  No  person,  except  a  natural  born  citizen,  or  a  citizen  of 
the  United  States  at  the  time  of  the  adoption  of  this  constitu- 
tion, shall  be  eligible  to  the  office  of  president.     Neither  shall 
any  person  be  eligible  to  that  office  who  shall  not  have  attained 


230  APPENDIX. 

to  the  age  of  thirty-five  years,  and  been  fourteen  years  a  resi- 
dent within  the  United  States. 

VI.  In  case  of  the  removal  of  the  president  from  office,  or  of 
bis  death,  resignation,  or  inability  to  discharge  the  powers  and 
duties  of  the  said  office,  the  same  shall  devolve  on  the  vice-presi- 
dent ;  and  the  congress  may,  by  law,  provide  for  the  case  of  re- 
moval, death,  or  inability  both  of  the  president  and  vice-presi- 
dent, declaring  what  officer  shall  then  act  as  president  :  and 
such  officer  shall  act  accordingly,  until  the  disability  be  remov- 
ed, or  a  president  shall  be  elected. 

VII.  The  president  shall,  at  stated  times,  receive  for  his  ser- 
vices, a  compensation  which  shall  neither  be  increased  nor  di- 
minished during  the  period  for  which  he  shall  have  been  elected : 
and  he  shall  not  receive,  within  that  period,  any  other  emolu- 
ment from  the  United  States,  or  any  of  them. 

VIII.  Before  he  enter  on  the  execution  of  his  office,  he  shall 
take  the  following  oath  or  affirmation  : 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  exe- 
cute the  office  of  president  of  the  United  States  ;  and  will,  to 
the  best  of  my  ability,  preserve,  protect,  and  defend  the  con- 
stitution of  the  United  States." 

SECTION  11. 

I.  The  president  shall  be  commander  in  chief  of  (he  army 
and  navy  of  the  United  States,  and  of  the  militia  of  the  several 
states,  when  called  into  the  actual  service  of  the  United  States. 
He  may  require  the  opinion  in  writing  of  the  principal  officers 
in  each  of  the  executive  departments,  upon  any  subject  relating 
to  the  duties  of  their  respective  offices,  and  he  shall  have  power 
to  grant  reprieves  and  pardons,  for  offences  against  the  United 
States,  except  in  cases  of  impeachment. 

II.  He  shall  have  power,  by  and  with  the  advice  and  consent 
of  the  senate,  to  make  treaties,  provided  two  thirds  of  the  sena- 
tors present  concur  :  and  he  shall  nominate,  and  by  and  with 
the  advice  and  consent  of  the  senate,  shall  appoint  ambassadors, 
other  public  ministers,  and  consuls,  judges  of  the  supreme  court, 
and  all  other  officers  of  the  United  States,  whose  appointments 
are  not  herein  otherwise  provided  for,  and  which  shall  be  esr 
tablished  by  law.     But  the  congress  may,  by  law,  vest  the  ap- 
pointment of  such  inferior  officers  as  they  think  proper  in  the 
president  alone,  in  the  courts  of  law,  or  in  the  heads  of  depart- 
ments. 

III.  The  president  shall  have  power  to  fill  up  all  vacancies 
that  may  happen  during  the  recess  of  the  senate,  by  granting 
pommissions  which  shall  expire  at  the  end  of  their  next  session. 


CONSTITUTION  OF  UNITED  STATES.  231 

SECTION  HI. 

He  shall  from  time  to  time  give  to  the  congress  information 
of  the  state  of  the  union  ;  and  recommend  to  their  considera- 
tion such  measures  as  he  shall  juJge  necessary  and  expedient. 
He  may,  on  extraordinary  occasions,  convene  both  houses  or 
either  of  them ;  and,  in  case  of  disagreement  between  them, 
with  respect  to  the  time  of  adjournment,  he  may  adjourn  them 
to  such  time  as  he  shall  think  proper.  He  shall  receive  am- 
bassadors and  other  public  ministers.  He  shall  take  care  that 
the  laws  be  faithfully  executed  ;  and  shall  commission  all  (.he 
officers  of  the  United  States. 

SECTION  IV. 

The  president,  vice-president,  and  all  civil  officers  of  the 
United  States,  shall  be  removed  from  office  on  impeachment 
for,  and  conviction  of  treason,  bribery,  or  other  high  crimes 
and  misdemeanors. 

ARTICLE  III. 

SECTION  I. 

The  judicial  power  of  the  United  States  shall  be  vested  in 
one  supreme  court,  and  in  such  inferior  courts  as  the  congress 
may,  from  time  to  time  ordain  and  establish.  The  judges  both 
of  the  supreme  and  inferior  courts,  shall  hold  their  office  during 
good  behaviour  ;  and  shall,  at  stated  times,  receive  for  their 
services  a  compensation,  which  shall  not  be  diminished  during 
their  continuance  in  office. 

SBCTION  II. 

I.  The  judicial  power  shall  extend  to  all  cases  in  law  and 
equity,  arising  under  this  constitution,  the  laws  of  the  United 
States,  and  treaties  made,  or  which  shall  be  made,  under  their 
authority  ;  to  all  cases  affecting  ambassadors,  other  public  min- 
isters, and  consuls  ;  to  all  cases  of  admiralty  and  maritime  juris- 
diction ;  to  controversies  to  which  the  United  States  shall  be  a 
party,  to  controversies  between  two  or  more  states,  between  a 
state  and  citizens  of  another  state,  between  citizens  of  different 
states,  between  citizens  of  the  same  state  claiming  lands  under 
grants  of  different  states,  and  between  a  state,  or  the  citizens 
thereof  and  foreign  states,  citizens,  or  subjects. 

II.  In  all  cases,  affecting  ambassadors,  other  public  ministers 
and  consuls,  and  those  in  which  a  state  shall  be  a  party,  the  su- 
preme court  shall  have  x>riginal  jurisdiction.     In  all  the  other 
cases  before  mentioned,  the  supreme  court  shall  have  appellate 
jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions,  and 
under  such  regulations,  as  the  congress  shall  make. 


APPENDIX* 

III.  The  trial  of  all  crimes,  except  in  cases  of  impeachment,, 
shall  be  by  jury,  and  such  trial  shall  be  held  in  the  state  where 
the  said  crimes  shall  have  been  committed  ;  but  when  not  com- 
mitted within  any  state,  the  trial  shall  be  at  such  place  or  places 
as  the  congress  may  by  law  have  directed. 

SECTION  lit. 

I.  Treason  against  the  United  States  shall  consist  only  in 
levying-  war  against  them,  or  in  adhering  to  their  enemies,  giv- 
ing them  aid  and  comfort.     No  person  shall   be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  court. 

II.  The  congress  shall  have  power  to  declare  the  punishment 
of  treason  ;  but  no  attainder  of  treason  shall  work  corruption 
of  blood,  or  forfeiture,  except  during  the  life  of  the  person  at- 
tainted. 

ARTICLE  IV. 

SECTION  I. 

Full  faith  and  credit  shall  be  given,  in  each  state,  to  the  pub- 
lic acts,  records,  and  judicial  proceedings  of  every  other  state. 
And  the  congress  may,  by  penal  laws,  prescribe  the  manner  in 
which  such  acts,  records,  and  proceedings  shall  be  proved,  and 
the  effect  thereof. 

SECTION  It. 

I,  The  citizens  of  each  state  shall  be  entitled  to  all  the  pri- 
TJleges  and  immunities  of  citizens  in  the  several  states. 
~*)il.  A  person  ^charged  in  any  state  with  treason,  felony,  or 
other  crimes,  w&^shall  flee  from  justice  and  be  found  in  another 
state,  shall,  oryjj?ffnaud  of  the  executive  authority  of  the  state 
from  which  hj^j|ed,  be  delivered  up,  to  be  removed  to  the  state 
having  jurisdiction  of  the  crime. 

III.  No  person,  held  to  service  or  labour  in  one  state  under 
the  laws  thereof,  escaping  into  another,  shall  in  consequence  of 
any  law  or  regulation  therein,  be  discharged  from  such  service 
or  labour  ;  but  shall  be  delivered  up  on  claim  of  the  party  to 
whom  such  service  or  labour  may  be  due. 

SECTION  III. 

I.  New  states  may  be  admitted  by  the  congress  into  this 
union  ;  but  no  new  state  shall  be  formed  or  erected  within  the 
jurisdiction  of  any  other  state,  nor  any  state  be  formed  by  the 
junction  of  two  or  more  states — without  the  consent  of  the 
legislatures  of  the  state  concerned  as  well  as  of  the  congress. 

II.  The  congress  shall  have  power  to  dispose  of>  and  make 


CONSTITUTION  OF  UPttTED  STATES.  233 

all  needful  rules  and  regulations  respecting1  the  territory  or 
other  property  belonging1  to  the  United  States  :  ard  nothing  in 
this  constitution  shall  be  so  construed  as  to  prejudice  any  claims 
of  the  United  States,  or  qf  any  particular  state. 

SECTION  IV. 

The  United  States  shall  guarantee  to  every  state  in  this 
union,  a  republican  form  of  government  ;  and  shall  protect 
each  of  them  against  invasion,  and  on  application  of  the  legis- 
lature, or  of  the  executive  (when  the  legislature  cannot  be  con- 
vened) against  domestic  violence. 

ARTICLE  V. 

The  congress,  whenever  two-thirds  of  both  houses  shall  deem 
it  n<  cessary,  shall  propose  amendments  to  this  constitution,  or 
on  *he  application  of  the  legislatures  of  two- thirds  of  the  seve- 
ral states,  shall  call  a  convention  for  proposing  amendments  ; 
which,  in  either  case,  shall  be  valid  to  all  intents  and  purposes, 
as  part  of  this  constitution,  when  ratified  by  the  legislatures]  of 
three-fourths  of  the  several  states,  or  by  conventions  in  three- 
fourths  thereof,  as  the  one  or  the  other  mode  of  ratification  may 
be  proposed  by  the  congress  :  Provided,  that  no  amendment 
which  may  be  made  prior  to  the  year  one  thousand  eight  hun- 
dred and  eight,  shall  in  any  manner  affect  the  first  and  fourth 
clauses  in  the  ninth  section  of  the  first  article  :  and  that  no 
state,  without  its  consent,  shall  be  deprived  of  its  equal  suffrage 
in  the  senate. 

ARTICLE  VI. 

I.  All  debts  contracted,  and  engagements  entered  into,  be- 
fore the  adoption  of  this  constitution,  shall  be  as  valid   against 
the  United   States,  under  this  constitution,  as  under  the  con- 
federation. 

II.  This  constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made,  or 
which  shall  be  made,  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land,  and  the  judges  in  every 
state  shall  be  bound  thereby,  any  thing  in  the  constitution  or 
laws  of  any  state  to  the  contrary  notwithstanding. 

III.  The  senators  and  representatives  before  mentioned,  and 
the  members  of  the  several  state  legislatures,  and  all  execu- 
tive and  judicial  officers,  both  of  the  United  States  and  of  the 
several  states,  shall  be  bound,  by  oath  or  affirmation,  to  support 
this  constitution  ;  but  no  religious  test  shall  ever  be  required  as 


234  APPENDIX* 

a  qualification  to  any  office  or  public  trust  under  the  United 
States. 

ARTICLE  VII. 

The  ratification  of  the  convention  of  nine  states  shall  be 
sufficient  for  the  establishment  of  this  constitution  between 
the  states  so  ratifying  the  same. 

Done  in  the  convention  by  the  unanimous  consent  of  the 
states  present,  the  seventeenth  day  of  September,  in  the 
year  of  our  Lord  one  thousand  seven  hundred  and  eighty- 
seven,  and  of  the  Independence  of  the  United  States  of 
America  the  twelfth.  In  witness  whereof  we  have  sub- 
scribed our  names. 

GEORGE  WASHINGTON,  President, 

and  delegate  from  Virginia. 
(Attest)     WILLIAM  JACKSON,  Secretary. 


AMENDMENTS. 

The  following  Articles  in  addition  to,  and  amendment  of,  (he- 
constitution  of  the  United  States,  having  been  ratified  by  the 
legislatures  of  nine  states,  are  equally  obligatory  with  the 
constitution  itself. 

I.  CONGRESS  shall  make  no  law  respecting  an  establishment 
of  religion,  or  prohibiting  the  free  exercise  thereof,  or  abridg- 
ing the  freedom  of  speech,  or  of  the  press  ;  or  the  right  of  the 
people  peaceably  to  assemble,  and  to  petition  the  government 
for  a  redress  of  grievances. 

II.  A  well  regulated  militia  being  necessary  to  the  security 
of  a  free  state,  the  right  of  the  people  to  keep  and  bear  arms 
shall  not  be  infringed. 

III.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any. 
house,  without  the  consent  of  the  owner  ;  nor  in  time  of  war, 
but  in  a  manner  to  be  prescribed  by  law. 

IV.  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches  and 
seizures,  shall  not  be  violated  ,  and  no  warrants  shall  issue,  but 
upon  probable  cause,  supported  by  oath  or  affirmation,  and  par- 
ticularly describing  the  place  to  be  searched,  and  the  persons 
or  things  to  be  seized. 


CONSTITUTION  OF  UNITED  STATES.  235 

V.  No  person  shall  be  held  to  answer  for  a  capital  or  other- 
wise infamous  crime,  unless  on  a  presentment  or  indictment  of 
a  grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia,  when  in  actual  service,  in  time  of  war,  or  pub- 
lic danger  :  nor  shall  any  person  be  subject,  for  the  same  of- 
fence, to  be  twice  put  in  jeopardy  of  life  or  limb  ;  nor  shall  be 
compelled  in  any  criminal  case,  to  be  witness  against  himself; 

^jror  be  deprived  of  life,  liberty,  or  property,  without  due  process 
of  law  ;  nor  shall  private  property  be  taken  for  public  use, 
without  just  compensation. 

VI.  In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury,  of  the 
state  and  district  wherein  the  crime  shall  have  been  committed  ; 
which  district  shall  have  been  previously  ascertained  by  law  ; 
and  to  be  informed  of  the  nature  and  cause  of  the  accusation  ; 

^e  be  confronted  with  the  witnesses  against  him  ;  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favour;  and  to 
have  the  assistance  of  counsel  for  his  defence. 

VII.  In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  bo 
preserved  :  and  no  fact  tried  by  jury  shall  be  otherwise  re-ex- 
amined in  any  court  of  the  United  States,  than  according  to 
the  rules  of  the  common  law. 

VIII.  Excessive  bail  shall  not  be  required  ;  nor  excessive 
fines  imposed  ;  nor  cruel  and  unusual  punishment  inflicted. 

IX.  The  enumeration,  in  the  constitution,  of  certain  rights 
shall  not  be  construed  to  deny  or  disparage  others  retained  by 
the  people. 

X.  The  powers  not  delegated  to  the  United  States  by  the 
constitution,  nor  prohibited  by  it  to  the  states,  are  reserved  to 
the  states  respectively,  or  to  the  people. 

XI.  The  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity,  commenced  or 
prosecuted  against  one  of  the  United  States  by  citizens  of  an- 
other state,  or  by  citizens  or  subjects  of  any  foreign  state. 

XII.  The  electors  shall  meet  in  their  respective  states,  and 
vote  by  ballot  for  president  and  vice-president,  one  of  whom,  at 
least,  shall  not  be  an  inhabitant  of  the  same  state  with  them- 
selves ;  they  shall  name  in  their  ballots  the  person  voted  for  as 
president,  and  in  distinct  ballots  the  person  voted  for  as  vice- 
president  ;  and  they  shall  make  distinct  lists  of  all  persons  voted 
for  as  president,  and  of  all  persons  voted  for  as  vice-president, 
and  of  the  number  of  votes  for  each,  which  lists  they  shall  sign 
and  certify,  and  transmit  sealed  to  the  government  of  the  Uni- 
ted States,  directed  to  the  president  of  the  senate  ;  the  presi- 
dent of  the  senate  shall,  in  the  presence  of  the  senate  and  house 
of  representatives,  open  all  the  certificates,  and  the  votes  shaU 


236  APPENDIX. 

then  be  counted  :  the  person  having  the  greatest  nu Tiber  of 
votes  for  president  shall  be  the  president,  if  such  number  be  a 
majority  of  the  whole  number  of  electors  appointed  ;  and  if 
no  person  have  such  majority,  then  from  the  persons  having  the 
highest  numbers  not  exceeding  three  on  the  list  of  those  voted 
for  as  president,  the  house  of  representatives  shall  choose  im- 
mediately, by  ballot,  the  president.  But  in  choosing  the  presi- 
dent the  votes  shall  be  taken  by  states,  the  representation  from 
each  state  having  one  vote  ;  a  quorum  for  this  purpose  shall 
consist  of  a  member  or  members  from  two-thirds  of  the  staler, 
and  a  majority  of  all  the  states  shall  be  necessary  to  a  choice. 
An$  if  the  house  of  representatives  shall  not  choose  a  president 
whenever  the  right  of  choice  shall  devolve  upon  them,  before 
the  fourth  day  of  March  next  following,  then  the  vice-president 
shall  act  as  president,  as  in  the  case  of  the  death  or  other  con- 
stitutional disability  of  the  president. 

The  person  having  the  greatest  number  of  votes  as  vice-pre- 
sident, shall  be  vice-president,  if  such  number  be  a  majority  of 
the  whole  number  of  electors  appointed  ;  and  if  no  person  have 
a  majority,  then  from  the  two  highest  numbers  on  the  list,  the 
senate  shall  choose  the  vice-president :  a  quorum  for  the  pur- 
pose shall  consist  of  two-thirds  of  the  whole  number  of  sena- 
tors, and  a  majority  of  the  whole  number  shall  be  necessary  to 
a  choice. 

But  no  person  constitutionally  ineligible  to  the  office  of  pre- 
sident, shall  be  eligible  to  that  of  vice-president  of  the  United 
States. 


INDEX. 


Page 

ADMIRALTY  JURISDICTION. 
See  DISTRICT  COURTS,  JUDI- 
CIAL POWER,  &C. 

ADMISSION  OF  STATES. 
Power  of  admitting  new  States  185 
Construction  given  to  it.  186 

ALIENS. 

Who  so  termed  168 

Inducements  for  them  to  become 

citizens  ib. 

Mode  prescribed  ib. 

Rights  acquired  thereby  ib. 

See  NATURALIZATION. 

ALLKQIANCR. 
Nature  of  that  due  by  Citizens 

of  the  United  States.  167 

AMBASSADORS. 

By  whom  appointed  66 

In  what  Courts  they  may  sue 

and  be  sued  96,  97 

Powerof  sending  and  receiving  135 
Infringements  on  their  rights, 

how  punishable  152 

AMENDMENT  OF  CONSECUTION. 

Necessity  of  such  power  190 

Mode  of  exercising  it  ib. 

Restrictions  upon  it  ib. 

Amendments  adopted  191 

Their  nature  and  design  ib. 

Effect  and  construction  of  one.  192 

APPEALS. 

See  JUDICIAL  POWER,  SUPREME 
COURT,  &c. 

APPOINTMENTS. 

Power  of,  where  vested  66 

Vacancies,  how  supplied  67 

"What  vacancies  intended  68 


Page 
ARBITER. 

See  JUDICIAL  POWER,  SUPREME 
COURT,  Ac. 

ARMY  AND  NAVY.  '     . 
Commander-in-Chief  of  64 

Power  of  raising  and  equipping  119 
Necessity  and  extent  of  power  120 
Restrictions  on  the  States  relat- 

ing to  them  121 

-  upon  Congress.        122 

ARSENALS  AND  FORTS. 
See  LOCAL  JURISDICTION. 

ARTS,  (TSEFUL.) 
See  SCIENCE. 

ATTAINDER. 
See  BILLS  OF  ATTAINDER. 

AUTHORS  AND  INVENTORS. 

See  SCIENCE. 

AUXILIARY  POWERS. 
Power  to  make  Laws  "  necessa- 

ry and  proper,"  to  execute 

other  powers. 

Foundation  and  meaning  of  it  206 
Judicial  construction  of  it  ib. 

Implied  powers,  how  delegated  207 
See  POWERS  OF  GOVERNMENT. 

BANK. 

See  CORPORATIONS. 

BANKRUPTCY. 
Power  to  establish  uniform  sys- 

tem 169 

Why  vested  in  National  Go- 

vernment ib. 


Object  of  Bankrupt  Laws 
How  distinguished 


from  Insol- 


vent Laws 


ib» 


238 


INDEX. 


Page 

Banki-uptcy,  defined  169 

To  what  persons  confined  170 

Nature  of  power  relative  to  it  ib. 
Power  retahifd  by  States  ib. 

Slate  Laws  cannot  discharge 
from  Contracts,  except  in 
certain  cases  171 

Why  no  uniform  system  now  in 

force.  ib. 

BILLS  OF  ATTAINDER. 

Prohibited  to  States  193 

Definitions  of  195 

To  what  cases  confined.  ib. 

BILLS  OF  CREDIT. 

Their  issue  prohibited  to  Stales  193 
Reasons  therefor  194 

Judicial  construction  of  the 
Power  of  Congress  in  rela- 
tion to  them.  195 

BORROWING  MONEY. 

Power  of,  where  vested  126 

How  conferred  134 

Extent  and  construction.  ib. 

CAPTURES. 

Rules  concerning  118 

Power  of  Congress  to  make  them  i  b. 
Nature  and  extent  of  the  power  ib. 
Judicial  construction  of  it.  ib. 

CIRCUIT  COURTS. 

Organization  and  Sessions  ITS 

Legislative  regulations  of  their 

proceedings  106 

Original  and  exclusive  jurisdic- 
tion ib. 

In  regard  to  crimes  and  offences    ib. 

Original  and  concurrent  Juris- 
diction ib. 

In  Civil  suits  ib. 

Jurisdiction  as  to  copyrights 

and  patents  ib. 

In  cases  where  U.  S.  are  par- 
ties 107 

Appellate  jurisdiction  ib. 

In  what.sense  "  Inferior  Courts"    ib. 

Proceedings,  how  to  be  inter- 
preted ib. 


CITIZENS. 
Who  are  Citizens  of  U.  S. 


165 


Page 

Who,  native  Citizens  165 

Persons,  born  within   the  U.  S. 

who  are  not  Citizens  166 

Persons  born  abroad,  who  are     167 
See  ALIENS,  ALLEGIANCE,  NA- 
TURALIZATION, &c. 

COASTING  LICENCE. 
See  COMMERCE. 

COIN  AND  COINING. 
See  MOKEY,  POWERS  of  GOVERN- 
MENT, &c. 

COMMERCE. 

Power  of  regulating  it  with  fo- 
reign nations  141 

Where  and  how  vested  ib. 

Its  nature  and  necessity  ib. 

To  what  it  extends  ib.  142 

With  what  exception  ib. 

Judicial  construction  of  it  ib. 

How  far  it  comprehends  navi- 
gation within  a  State  143 

To  what  vessels  it  extends          144 

How  far  it  authorizes  sale  of  im- 
ported articles  ib. 

States,  how  far  restricted  from 

preventing  such  sale  145 

Extends  incidentally  to  other 

and  what  objects  ib. 

Applied  to  protection  of  domes- 
tic industry  ib. 

To  prohibition  of  Slave  Trade     146 

Power  of  regulating  Commerce 

among  the  States  154 

Its  general  objects  and  extent      ib. 

How  far  restricted  ib. 

What  Commerce  reserved  to 

States  155 

When  power  of  Congress  may 

be  exercised  within  a  State  ib. 

Judicial  construction  of  this 
power 

Applied  to  Incidental  objects       ib. 

Restrictions  on  States  157 

Power  of  regulating  Indian 

Trade  ib. 

How  vested  and  interpreted         ib. 

Extent  of  its  operation  ib. 

Trade  and  intercourse  with  In- 
dians by  individuals,  how 
restrained,  ih. 

See  INDIAN  TRIBES. 


INDEX. 


239 


Page 

COMMON  ARBITER. 
See  JUDICIAL  POWER,  SUPREME 
COURT,  &c. 

COMMON  LAW. 

How  far  established  in  the  Co- 
lonies 30 

Benefit  of,  claimed  by  Congress    ib. 

Protects  absolute  rights  ib. 

Regulated  relative  rights  of  Co- 
lonists ib. 

Punished  offences  against  pub- 
lic justice  31 

How  far  adopted  by  States  32 

Basis  of  their  Laws  ib. 

State  Constitutions  made  in  re- 
ference to  its  validity  ib. 

Its  existence  pre-supposed  by 

Constitution  of  U.  S.  ib. 

Referred  to  for  explanation  of 

its  powers  and  provisions  ib. 

How  far  Common  Law  in  force 
under  the  Constitution  of 
U.  S.  ib. 

CONGRESS. 

How  constituted  37 
Disabilities  of  members  -1- 
Their  privileges  and  powers  ib. 
Elections,  returns,  and  quali- 
fications ib. 
In  what  manner  these  powers 

are  exercised  43 
Quorum  of  each  House  ib. 
Adjournments  and  Journals  ib. 
Freedom  of  debate  ib. 
Punishment  of  contempts  ib. 
Duty  and  power  in  such  cases  44 
How  far  punishment  may  ex- 
tend ib. 
How  such  offences  otherwise 

punishable  ib. 
To  what  subjects  power  of  le- 
gislation extends  ib. 
Rules  of  proceedings  46 
Forms  of  Legislation  47,  48 
Appointment  of  Committees  47 
Standing  Committees  ib. 
Select  Committees  ib. 
Committees  of  the  whole  48 
Time  and  manner  of  assem- 
bling 51 
Time  and  manner  of  adjourning  52 
Period  of  dissolution.  ib. 
See  LEGISLATIVE  POWEB, 


HOUSE    OF    REPRESENTA 
TIVES,  SKNATK,  &c. 


Page 


CONSTITUTION. 

Definition  of  one  25 

Origin  of  them  ib. 

Where  they  may  exist  26 

When  derived  from  act  of  the 

Government.  ib. 

When  from  written  compact  ib. 

Different  modes  of  framing  one  ib. 

Which  most  practicable  ib. 

Which  preferable  27 

How  obtained  ib. 

Theory  of  a  Republican  Consti- 
tution ib. 

Advantages  of  a  written  one  ib. 

Evils  of  a  traditionary  one  28 

Reasons  for  preferring  one  writ- 
ten ib. 

CONSTITUTION  OK  UNITED  STATES. 

On  what  foundation  erected  33 

On  what  principles  formed  ib. 

From  what  materials  ib. 

In  what  manner  adopted  ib. 

For  what  objects  designed  ib. 
Effect    of  its   adoption  on  the 

States  ib. 
Effect    of    its  adoption  on  the 

forner  Confederation  33 
Principle  of  representation,  how 

applied  in  it  34 
Powers   of  Government,   how 

delegated  by  it  ib. 

How  to  be  examined  ib. 

CONSTITUTIONAL  LAW  defined  25 

CONSTITUTIONS  (STATE). 

Foundations,  how  laid 

Source  of  their  authority  29 

On  what  principle  founded  ib 

Powers  of  Government,  how 
vested  and  distributed  by 
them  ib. 

Former  civil  and  municipal  In- 
stitutions, how  far  retained  30 

Natural  and  moral  rights  se- 
cured ib. 

Ste    STATE    GOVERNMENT!, 
STATES,  &c. 

CONSULS  AND  VICK  CONSULS. 
By  whom  appointed  66 

la  what  Courts  they  may  sue 


240 


INDEX. 


Page 
and  be  sued  or  prosecuted 

97,  109 
See  JUDICIAL  POWER. 

CONTRACTS. 
See  LAWS  IMPAIRING  CONTRACTS. 

COPYRIGHT. 
Ste  SCIENCE. 

CORPORATIONS. 

Granfs  of,  irrevocable  198 

Are  Contracts  wilhin  the  mean- 
ing and  protection  of  the 
Constitution  199 

Creation  of,  incident  to  Sove- 
reignty 207 

Nature  and  extent  of  power  ib. 

See  AUXILIARY  POWERS,  LAWS 
IMPAIRING  CONTRACTS,  &c. 

COUNTERFEITING. 

Power  of  punishing  164 

To  what  objects  il  extends  ib. 

Nature  and'rieressify  of  Power     ib. 
See  POWERS  OF  GOVERNMENT. 

COURTS. 

See  IMPEACHMENTS,    , 
JUDICIAL  POWER, 
CIRCUIT  COURTS, 
DISTRICT  COURTS, 
STATE  COURTS,  and 
MAGISTRATES,  and 
SUPREME  COURT. 

DEBTS. 
See  TENDER  LAWS. 

DECLARATION  OF  INDEPENDENCE 
See  INDEPENDENCE. 

DISTRICT  COURTS. 

How  organized  108 

Stated  and  Special  terms  ib. 

Exclusive  Jurisdiction  ib. 

Original  Jurisdiction  ib. 

Admiralty  Jurisdiction  ib. 
Concurrent    Jurisdiction    with 

Circuit  Courts  109 
Jurisdiction  exclusive  in  certain 

cases  of  State  Courts  ib. 

With  respect  to  Patents  ib. 

Power  of  Judge  at  Chambers  ib. 
See  JUDICIAL  POWER. 


Page 

181 
ib. 

ib. 
182 


DISTRICT  OF  COLUMBIA. 
Seat  of  Government 
Courts  organized  therein 
Privileges  of  its  inhabitants 
Their  disabilities. 
See  LOCAL  JURISDICTION. 

DOCK-YARDS. 
See  LOCAL  JURISDICTION. 


DOMESTIC  INDUSTRY. 

Encouraged  by  protecting  du- 
ties 131 

Upon  what  construction  ib. 

By  whom  question  of  Constitu- 
tionality must  be  decided  132 

Commercial  restrictions  applied 

to  the  purpose  145 

To  what  extent,  and  upon  what 

ground  of  construction  ib. 

How  point  must  be  dec  ided.        146 

See  COMMERCE,  POWERS  OF 
GOVERNMENT,  and  TAX- 
ATION and  TAXES. 

DUTIES. 

See  IMPOSTS  AND  DUTIES, 
TAXATION  AND  TAXES, 
&c. 

ELECTORS  (OF  PRESIDENT  AND 

VICE  PRESIDENT). 

How  chosen  56 

Number  in  each  State  ib. 

Requisite  qualifications  ib. 

At  what  time  to  be  chosen  57 

Time  for  their  assembling  ib. 
Mode   of  their   proceeding   to 

election  ib. 

Duties  subsequent  to  Election.  58 
See  PRESIDENT  OF  U.  S. 

EXECUTIVE  POWER. 

General  functions  26 

Objects  of  this  Department  52 

Extent  of  discretionary  power  ib. 
Obligation  to  obey  and  enforce 

Laws  53 

Requisite  qualities  ib. 

Power  apportioned  to  it  54 

Advantage  of  its  unity  ib. 
Evils  of  its  division  or  plurali- 

ty  55 
How  vested  by  Constitution  of 

U.  S.  ib. 


INDEX. 


Page 

Subordinate  branches  70 

How  far  auxiliary  to,  or  com- 
prehensive of,  Judicial 
Power  73 

See  PRESIDENT  OF  U.  S. 

EXPATRIATION. 

Right  of,  denied  by  English 

Law  lw 

How  regarded  by  writers  on 
.  public  Law  ib. 

How  far  admitted  by  State  Con- 
stitutions 167 

How  far  settled  in  Courts  of 

U.  S.  ib. 

See  NATURALIZATION,  &c. 

Ex  POST  FACTO  LAWS. 
Prohibited  to  States 
Definition  and  meaning  196 

FELONIES  (ON  THE  SEA). 
Power  to  define  and  punish         147 
To  what  they  amount  in  effect    151 
To  what  extent  declared  Pira- 
cy, and  punished  as  such       ib. 
Power,  how  far  exclusive  4b. 

See  PIRACY. 

FLEKTS. 
See  ARMY  AND  NAVY. 

FORTS. 
See  LOCAL  JURISDICTION. 


GOVERNMENT. 

Different  forms  of 

Powers  of,  how  divided 

How  far  distinct 

Separate  Departments 

Provincial  Governments 

How  organized 

See  CONSTITUTION  OF  U.  S. 
CONSTITUTIONS  (STATE), 
POWERS  OF  GOVERNMENT, 
STATE  GOVERNMENTS. 


GUARANTIES. 
Nature,  terms,  and  effect  of  the 

Guaranties  to  the  States  187 
Their  necessity  and  extent  188 
Republican  form  of  Government  ib. 
Protection  from  invasion  189 

from  dome  sti  c  v  iolence    i  b. 

When  to  be  enforced  ib. 


HABEAS  CORPUS. 
Benefit  of  writ  secured 
By  whom  to  be  allowed. 


241 

Page 

31,32 
105 


HOUSE  OF  REPRESENTATIVES. 

How  constituted 

On  what  principle  of  represen- 
tation 

Members,  how  chosen 

For  what  Term 

Qualifications  of  electors 

members 

How  apportioned  amongst  the 
States 

Number  of  representatives 

Ratio  of  representation 

Exclusive  Powers  of  House  of 
Representatives 

Money  bills 

Choice  of  officers 

When  to  choose  President  of 
U.S. 

Mode  of  conducting  election 

See  CONGRESS,  LEGISLATIVE 
POWER,  <fcc. 


IMPLIED  POWERS. 
See  AUXILIARY  POWERS,  POW- 
ERS OF  GOVERNMENT,  dtc. 


ib. 
ib. 
ib. 
ib. 
39 

ib. 
ib. 
ib. 

45 
ib. 
47 

59 
ib. 


IMPEACHMENTS. 
Nature  of  power,   and   where 

vested  45 

Court  of  Impeachments  89 

Impeachments,  whence  derived  ib. 

By  whom  presented  90 

Senate,  why  selected  as  Court  ib. 

Objects  of  the  Jurisdiction  91 

Causes  of  Impeachment  ib. 

Persons  liable  thereto  ib. 
Construction  of  Constitution  in 

relation  to  them  92 

Articles  of  Impeachment  ib. 

Quorum  of  the  Court  ib. 

President  of  the  Court  93 

When  Chief  Justice  presides  ib. 

Power  of  presiding  officer  ib. 

Rules  of  evidence  ib. 

Forms  of  proceeding  ib. 

Nature  and  effect  of  sentence  94 

Power  of  pardon  restricted  ib, 
See  JUDICIAL  POWER,  SENATE, 

&c. 


X 


242 


INDEX. 


Page 

IMPOSTS  AND  DUTIES. 
How  far  prohibited  to  Slates, 

reason  and  necessity  of  it     201 
Judicial  construction  ib. 

See  POWERS  OF  GOVERNMENT, 
TAXATION,  AND  TAXES. 

INDEPENDENCE. 
Effect  of  its  Declaration 
As  to  persons  born  previously     166 
As  to  Citizenship  ib. 

As  to  British  subjects  167 

INDIAN  TRIBES, 

Intercourse  with,  regulated         157 

"What  relations  acknowledged       ib. 

Those  residing  within  limits  ol 

U.  S.  how  considered  158 

How  distinguished  from  "  fo- 
reign Nations."  ib. 

Relations  with    European  dis- 
coverers, how  determined    159 

How  far  same  principle  adopted 

by  U.  S.  ib. 

Practical  results  ib. 

How   considered   in    Treaties    . 
and  Laws  160 

Their  territory,  how  regarded      ib. 

See  COMMERCE,  JUDICIAL  Pow- 

KR,  &C. 

INTERNAL  [MPROVEMENTS. 

Right  of  appropriating  money 

for,   claimed  under  what 


power 

How  far  admitted 
See  COMMRRCE,  POST  OFFICES 

AND  POST  ROADS,  &c. 


161 
163 


INTERPRETATION  OF  CONSTITU- 
TION. 

Right  of  interpreting  Constitu- 
tion, where  vested  85 

Final  interpreter  provided          211 

See  JUDICIAL  POWER, 
SUPREME  COURT, 
SUPREME  LAW. 

JUDICIAL  POWER. 
General  functions  and  objects  26 
Nature  of  the  Power  73 
Effect  of  its  omission  ib. 
How  far  auxiliary  to  Executive  ib. 
HOW  far  it  partakes  of  Legisla- 
tive Power  ib. 


Objects  of  this  department  74 
Co-extensive  with    Legislative 

Power  ib. 
How  recognized  in  Constitution  ib. 
How  vested  ib. 
In  what  manner  constituted  75 
Appointment  of  Judges  ib. 
Tenure  of  their  offices  ib. 
Advantages  of  such  tenure  76 
Provision  for  their  support 
Necessity  of  their  independence  77 
Responsible  for  misconduct  ib. 
Objects  of  Jurisdiction  ib. 
Necessity  and  advantages  of  it  79 
As  to  cases  arising  under  Con- 
stitution ib. 
As  to  cases  arising  under  the 

Laws  of  the  U.  S.  80 
As  to  Treaties  81 
As  to  interpreting  Constitution  ib. 
Power  over  Laws  82 
in  construing  Constitu- 
tion ib. 
Objects  of  separating  Judicial 

from  other  departments  84 
Power  over  Constitutions  and 

Laws  of  the  Slates  ib. 
Power  of  final  interpretation  85 
Whence  derived  ib. 
Power  of  construing  State  Con- 
stitutions, restricted  ib. 
Reasons  for  vesting  Jurisdiction 

in  cases  enumerated  ib. 

Distribution  of  Jurisdiction  89 

Court  of  Impeachments  ib. 
Apportionment  of  Jurisdiction 

amongst  ordinary  Courts  94 
Supreme  Court  95 
Nature  of  Criminal  and  Admi- 
ralty Jurisdiction  101 
Appellate  Jurisdiction  ib. 
In  what  cases  extended  to  deci- 
sions of  State  Courls 

102,  103, 104 
Power  of  U.  S.  Courts  to  issue 

process,  &c.  ib. 
Of  Judges  to  relieve  by  Habeas 

Corpus  ib. 

Circuit  Courts  105 

Judicial  Districts  ib. 

District  Courts  108 

Territorial  Courts  109 

Functions  of  Judges  112 

Residence  required  ib. 

State  Courts  and  Magistrates  it). 


INDEX. 


243 


Page 

Effect  of  Sentences  where  U. 
S.  and  Slate  Courts  have 
concurrent  Jurisdiction         114 
See  COURTS,    POWERS  OF  GO- 
VERNMENT, &c. 

JURISDICTION. 

See  COURTS,  LOCAL  JURISDIC- 
TION, JUDICIAL  POWER, 
&c. 

LAW. 

See  COMMON  LAW,  SUPREME 
LAW,  &c. 

LAW  OF  NATIONS. 

Power  to  punish  offences  against  146 

How  far  exclusive  151 

Part  of  Common  Law  of  States  ib. 

Offences  against,  what  152 

How  punishable  ib. 

Policy  of  the  Law  153 
See  JUDICIAL  POWER. 

LAWS  IMPAIRING  CONTRACTS. 

Prohibited  to  the  States  193 

Policy  of  the  restriction  196 

To  what  Contracts  it  extends  197 

Obligation  of  Contracts  ib. 

Judicial  construction  of  198 
See  POWERS  o»  GOVERNMENT. 

LEGISLATIVE  POWER. 
General  functions  26 

How  organized  in  Colonies  29 

in  the  States         ib. 

How  vested  by  Const,  of  U.  S.      34 
Constituent  parts  36 

Objects  of  its  division  ib. 

Evils  of  a   single   Legislative 

Body  37 

Examples  of  in  States  ib. 

Further  reason  for  division  in 

Government  of  the  U.  S.       ib. 
Upon  what  principle  effected        38 
Objects  to  which  the  Legisla- 
tive Power  of  the  U.  S.  ex- 
tends ib. 
See  CONGRESS,  HOUSE  OF  RE- 
PRESENTATIVES, SENATE,  &,c. 

LETTERS  OF  MARQUH. 
Bee  MARO.UB  AND  REPRISAL. 


LOANS. 
See  BORROWING  MONET. 


Page 


LOCAL  JURISDICTION. 
Power  of  exclusive  Legislation    179 
To  what  places  it  extends  ib. 

Necessity  of  such  power  180 

In  what  mode  executed  181 

See  DISTRICT  OF  COLUMBIA,  &c. 

MANUFACTURES. 
See  DOMESTIC  INDUSTRY, 

MARQUE  AND  REPRISAL. 

Signification  of  117 

By  what  authority  granted  ib. 

Effect  of  the  grant  ib. 

In  what  cases  granted  ib. 

Nature  and  necessity  of  Power  1 1 8 

Prohibited  to  States  193 

Upon  what  grounds  ib. 

MILITIA. 
Power  of  regulating  and  calling 

forth  122 

Objects  of  the  Power  ib. 

Extent,  &,  cases  for  its  exercise  123 
Effect  of  its  exercise  on  Militia  ib. 
Mode  of  their  organization,  &c.  ib. 
By  whom  "  called  forth"  ib. 

Who  to  judge  of  exigencies  ib. 
Obligation  of  the  States  124 

Duty  of  State  Officers  120 

When    concurrent    power    of 

States  over  Militia  ceases      ib. 
When  Militia  become  National  ib. 

MINISTERS  (PUBLIC.) 
See  AMBASSADORS. 

MONEY. 

Power  of  coining  163 

Regulating  value  of  coins  ib. 

How  rendered  exclusive  ib. 

Its  necessity  and  advantage         164 
Objects  of  rendering  Power  ex- 
clusive ib. 
Why  prohibited  to  the  States      194 
See  BORROWING  MONEY,  COINS 
AND  COINING,  &c. 


NATURALIZATION. 
Power  to  establish  uniform  sys- 


165 


244 


INDEX. 


Page 

Necessarily  exclusive  165 

Who  may  "be  naturalized  168 

IV! ode  of  proceeding  ib. 

Effect  of  Naturalization  169^ 

See  ALIENS,  CITIZENS,  &c. 

NATURAL  RIGHTS. 

In  what  they  consist  30 

Privileges  subordinate  thereto  31 

How  secured  in  Colonies  ib. 

in  the  States  ib. 

Additional  securities  32 
How  recognized   and   secured 

by  Const,  of  U.  S.  ib. 

NAVIGATION. 
See  COMMERCE. 

NAVY. 
See  ARMY  AND  NAVY.    . 

NAVY  DEPARTMENT. 
How  organized  72 

Duties  of  Secretary  ib. 

Vacancies,  how  filled  73 

See  PRESIDENT  OF  U.  S. 

NOBILITY. 
See  TITLES  OF  NOBILITY. 

OATH  TO  SUPPORT  CON-" 

8TITUTION. 

By  whom  to  be  taken  213 

Intention  and  effect  ib. 

States  cannot  discharge  from      214 
•See  POWERS  OF  GOVERNMENT, 

STATES,.  &c. 

OBLIGATION  OF  CONTRACTS. 
See  LAWS  IMPAIRING  CONTRACTS. 

PASSPORTS. 

See  LAW  OF  NATIONS,  POWERS 
OF  GOVERNMENT,  &c. 

PATENTS. 
See  SCIENCE. 

PIRACY. 

Power  to  define  and  punish  147 

Exclusive  in  its  nature  ib. 

Definition  of  Pi  racy  ib. 

Mode  of  defining  it  ib. 
Who   are   deemed  Pirates  by 

Law  of  Nations  14& 


Jurisdiction    exercised    over 

them 

How  punished 
Where  they  may  be  tried 
Acts  declared  Piracy  by  Con- 

gress 
Jurisdiction  in  such  cases 


Pag* 

ib, 
ib. 
149 

ib. 
ib. 


Particular  acts  declared  Piracy  150 
How  punished  ib. 

POST  OFFICES  AND  POST  ROADS. 
Power  to  establish  them  161 

How  far  exclusive  ib. 

What  Power  claimed  as  incident  ib. 
How  far  admitted  163 

See  INTERNAL  IMPROVEMENTS. 

POWERS  OF  GOVERNMENT. 
How  distinguished 
How  to  be  organized 
Consequences  of  uniting  them       ib. 
How  distributed  in  the  Colonies  29 
How  organized  in  the  States        ib. 
How  vested  by  Constitution  of 

U.S. 

Extent  of  their  separation  35 

Object  of  their  partial  Union         ib. 
End  thus  effected  in  Govern- 

ment of  U.S.  ib. 

Legislative  Power 
Executive  Power 

Judicial  Power  73 

Nature  of  Powers  vested  in  Go- 

vernment of  U.  S.  114 

Reduced  to  different  classes         ib. 
Powers  relative  to  security  from 

foreign  danger 
Relative  to  war 

-  Taxation 

-  Borrowing  money        134 
.  -  Foreign  Intercourse      ib. 

-  Treaties  15$ 

-  Ambassadors,  &c.         ib. 

-  Foreign  Commerce     141 

-  Slave  Trade  145 

-  Piracy  147 

-  Felonies  at  Sea  ib. 
--  Offences  against 

Law  of  Nat  ions  152 

--  Intercourse  between 

the  States  153 

--  Commerce  amongst 

the  States 
---  with  the  Indians-         15? 


INDEX. 


245 


Relative  (o  post  offices  and  post 

roads  161 

coining  money,  &c.     165 

weightsand  measures  163 

punishment  of  coun- 
terfeiting- 164 

Naturalization  1H5 

Bankruptcy  169 

State  Records  171 

Miscellaneous  objects  172 

• Science    and    useful 

Arts  ib. 

— Local  Jurisdiction        179 

— punishment  of  Trea- 
son 182 

— — admission    of   new 

Statea  185 

— Territory   and    Pro- 
perty 186 

Guaranties     to     the 

States  187 
amendment  of   Con- 
stitution                                190 
Implied  and  reserved  Powers      192 
Restrictions  on  the  States  ib. 

absolute  against  193 

Treaties,  &c.  ib. 

Letters  of  marque  and 

reprisal  ib. 

• coining  money  194 

— Bills  of  credit  ib. 

Tender  Laws  ib. 

Bills  of  attainder          195 

'~ — Ex  post  facto  Laws    196 

1 Laws  impairing  Con- 
tracts .    ib. 

Titles  of  Nobility        200 

Qualified  restrictions  '201 

upon  duties  oti  imports,  &c.  ib. 

relative  to  troops  and  ships 

of  war  204 
compact    and    agree- 
ments                           204,  205 

engaging  in  war  ib. 

Auxiliary  Powers  ib. 

—  Laws  "  necessary  and 
proper"  for  executing 
Powers  ib. 

Declaration    of  Supreme 

Law  208 
Right  of  final  interpreta- 
tion                               211,212 


oath  to  support  Constitu- 
tion of  U.  S. 


213 


Page 
its  ratification  by  the  People  216 

PRESIDENT  OF  UNITED  STATES. 

Qualifications  for  Election  55 
Mode  of  election  ib.  58 
When  to  be  declared  elected 

by  Electors  59 
How  appointed  when  no  choice 

by  Electors  ib. 
Evidence  of  his  refusal  to  ac- 
cept, or  of  his  resignation  61 
How  vacancies  in  office  sup- 
plied ib.  62 
For  what  term  elected  ib. 
Provision  for  his  support  ib. 
Powers  and  dulii-a  63 
Negative  upon  Laws,  &c.  il>. 
Commander-in-Chief  64 
Reprieves  and  pardons  ib. 
Power  as  to  Trealirs  65 
Nominates  to*  what  offices  66,67 
Power  of  filling  vacancies  68 

as  to  removal  from  office  ib. 

as  to  convening  and   ad- 
journing Congress  C9 
Duty  with  respect  to  Ambassa- 
dors, &.c.  ib. 
From  what  officers  he  may. re- 
quire opinions  ib. 
General  duties  ib. 
Incidental  Pbwert  70 
Discretionary  Powers  ib. 
Oath  of  office  ib. 
Liability  to  Impeachment  71 
Assistants  in  his  Department  ib. 
See  EXECUTIVE  POWER. 

PRESIDENT  PRO.  TEM.  OF  SENATE. 
When  and  how  chosen  47 

When  to  act  as  President  of 

U.  S.  61,  62 

See  SENATE,VICE  PRESIDENT, 

fee. 

RATIFICATION  or  CONSTITUTION. 

Provision  for  ratify  ing  Constitu- 
tion 214 

Its  nature  and  effects  ib. 

Mode  of  ratification  adopted        215 

How  ratified  by  People  216 

Assent  of  States,  how  implied      ib. 

Consequences  of  such  ratifica- 
tion 217 

See  SECESSION. 


246 


Page 
REPRESENTATION. 

On  what  principle  founded  in 

Government  26. 

How  to  be  applied  27 

In  reference  to  Powers  of  Go- 
vernment ib. 

As  to  parties  delegating  them      ib. 

Practical  exception  ib. 

How  far  principle  prevailed  in 

Colonial  Governments  2§ 

How  extended  in  State  Consti- 
tutions ib. 

How  applied  in  Constitution  of 

U.  S.  34 

REPRESENTATIVBS. 
See  HOUSE  OF  REPRESENTA- 
TIVES. 

RESTRICTIONS  ON  STATES. 
See  POWERS  OF  GOVERNMENT, 
STATES,  &c. 

REVENUE. 
See  TAXATION,  &c. 

RIGHTS. 
See  NATURAL  RIGHTS. 

SAFB  CONDUCTS. 
See  LAW  OF  NATIONS,  POW- 
ERS or  GOVERNMENT,  &c. 

SENATE. 

How  constituted  40 

On  what  principle  of  represen- 
tation jb. 

Number  of  Senators  ib. 

In  what  manner  they  vote  ib. 

By  whom  chosen  ib. 

Manner  of  their  election  ib. 

For  what  term  elected  42 

Qualifications  of  Senators  ib. 

Powers  exclusive  of  House  of 

Representatives  45 

When  to  choose  President  pro 

tern.  47 

"When  and  how,  other  officers  ib. 

Mode  of  conducting  Executive 

business  ib. 

Quasi  Committees  49 

-•When  to  choose  Vice  President 

of  U.  S.  59 

Why  consent  of  Senate  requir- 
ed, to  Treaties  65 


Fag* 
Why  associated  with  President 

in  appointing  Power  67 

See  CONGRESS,  LEGISLATIVE 

POWER,  &c. 

SCIENCE. 

Power  to  promote  its  progress  172" 
Foundation,  origin,  and  policy  173 
Mode  in  which  executed  174 

Objects  of  the  power  ib. 

By  what  construction  effected  ib. 
Former  State  Laws  175 

Nature   and  extent  of   power 

vested  in  Congress  ib. 

Distinction  between  property  of 
Authors,  and  that  of  In- 
ventors 

Privileges  secured  to  both  177 

Extent  and  limitation  of  State 

power  in  regard  to  them        ib,. 
See   POWERS    OF    GOVERN- 
MENT. 

SECESSION*. 
Whether    States    may    secede 

from  the  Union  21  8- 

Consequences  of  Secession  ib. 

Ste  POWERS  OF  GOVERNMENT, 

STATES,  &c. 

SLAVE  TRADE. 

Power  of  prohibiting  145 

Fully  executed  by  Congress  ib. 
See  POWERS  OF  GOVERNMENT. 

SPEAKER  OF  HOUSE  OF  RE- 
PRESENTATIVES. 

How  chosen  47: 

When  to  act  as   President  of 

U.  S.  .  61: 

See  HOUSE  OF  REPRESENTA- 
TIVES. 

STATE  COURTS  AND  MAGIS- 
TRATES. 
See  JUDICIAL  POWER. 

STATE  DEPARTMENT. 
How  organized 

Duties  of  Secretary  61,71 

Vacancies,  how  filled  73> 

See  PRESIDENT  OF  UNITED 
STATES. 

STATE  GOVERNMENTS. 
Powers  reserved  to  thera  life 


INDEX. 


247 


Subordinate  to  Union 
Restricted  as  to  war 
Power  over  Militia 
Restricted  as  to  imposts,  &c. 
----  Commerce 
Concurrent  power  of  legislation 

in  certain  cases  with  Con- 

gress 

Restrictions  as    to  preventing 
rted  articles 


Page 

H7 
126 
131 
141 


143 
144 


sale  of  import 
Restrictions  as  to  protecting  du 

ties  146 

Jurisdiction  of  offences  against 

Law  of  Nations  151 

Regulation   of   internal    Com- 

merce 155 

Effect  of  their  collision   with 

powers  of  Union  157 

Power  in  cases  of  Bankruptcy 

and  Insolvency  170 

--  to  promote  Science,  <fcc.  179 
--  of  punishing  Treason  1  84 
Guaranty  of  Republican  Go- 

vernment 187 

Power  as  to  amendment  of  Con- 

stitution of  U.  S.  190 

Restrictions  on  their  powers  192 
Cannot  discharge  individuals 

from  their  allegiance  to  the 

United  States  214 

Assent  of  State  Governments  to 

Constitution  of  U.  S.  216 

States  cannot  annul  or  abrogate 

the  Federal  Powers         *    217 
See  CONSTITUTIONS  (STATE), 
PowERsor  GOVERNMENT, 
STATES,  &c. 

STATE  RECORDS. 
Power  of  Congress  in  relation 

to  them  171 

Their  effect  in  other  States         172 
Effect  of  Judgments  of  State 
Courts  as  evidence  in  other 
States.  ib. 

STATES. 

Powers  reserved  to  them  114 

Their  jurisdiction,  hove  far  su- 

perseded in  Maritime  cases  151 
Preservation      of     harmony 

amongst  153 

Commerce  amongst  them  regu- 

lated 154 

Internal  concerns,  how  far  ef- 


Page 

fected  by  Constitution  of 
U.  S.  15£ 

Internal  Commerce  of 

Citizens  of  the  several  States       l6S 

Proof  and  effect  of  their  Re- 
cords 172 

Their  powers,  how  affected  by 
collision  with  those  of 
Congress  1*6 

Treason  against  a  State  184 

Admission  of  new  Slates 

Guaranties  to  the  Stales 

Reserved  rights  191 

Restrictions  on  their  power         192 

Bound  by  whose  construction  of 

the  Constitution  of  U.  S.      211 

No  discretion  as  to  organizing 
Government  of  the  United 
States  214 

Cannot  secede  from  Union          2I& 

See  CONSTITUTIONS  (STATE), 
POWERSOF  GOVERNMENT, 
STATE  GOVERNMENTS. 

SUPREME  COURT. 
J Edges  recognized  in  Constitu- 
tion, &c.  ffr 
Tenure  of  their  offices                   7ft 
Court  created  by  Constitution      95 

organized  by  Law  ib. 

Number  of  Judges  9ft 

Number  to  form  quorum  ib. 

Terms  of  the  Cou  rt  i  b. 

Jurisdiction,  Original  ib. 

Appellate  ib. 

Exclusive    96,  97,  101 

In  cases  against  Ambassadors, 

<kc.  97 

where  a  State  is  a  party  ib. 

In  suits  by  a  State  ib. 

Concurrent  Jurisdiction  ib. 

In  suits  by  Ambassadors  ib. 

Where  a  State  is  a  party  ib. 

Whether  original   Jurisdiction 

is  in  all  cases  exclusive          ib. 
Jurisdiction  as  to  Indians  ib. 

Mode  of  exercising  appellate 

Jurisdiction  ib» 

Writs  of  Error  and  Appeals         98 
In  what  cases  allowed  98,  99 

From  Judgments  of  whatCourts    98 
Restrictions  on  the  right  9^ 

Proceedings  in  case  of  reversal     ib* 
Regulations  respecting  writs  of 
Error  and  Appeals  100) 


248 


INDEX. 


Page 
Judicial  construction  in  regard 

to  them  100 

Exceptions  from  Appellate  Ju- 
risdiction 102 
Appeals  from  State  Courts     ib.  103 
Superintending  Power  over  In- 
ferior Courts  104 
See  JUDICIAL  POWER. 

SUPREME  LAW. 

Declared  by  Constitution  115 

Effect  of  conflict  between  Fede- 
ral and  Stale  Powers  209 
Duty  of  Courts  in  sucb  cases       211 
States  bound  by  interpretation 
of  Constitution  by  Supreme 
Court  of  the  U.  S.  ib. 

TAXATION  AND  TAXES. 

Power  of  levying  Taxes  126 

Its  objects  and  purposes  ib. 

Its  necessity  and  extent  127 

"Where  vested,  and  in  what  terms  ib. 

How  qualified  in  its  exercise        ib. 

Subjects  of  Taxation  128 

In  what  sense  term  "  Taxes" 

used  ib. 

Different  kinds  of  Taxes  ib. 

Importance    of    distinguishing 

them  129 

Judicial  construction  of  Power     ib. 

Restrictions  on  States  respect- 
ing it  201 

Judicial  construction  thereof       ib. 

See  LEGISLATIVE  POWER, 
POWERSOF  GOVERNMENT, 
&c. 

TENDER  LAWS. 

How  far  prohibited  to  States       193 
"What  allowed  as  legal  tender 

in  payment  of  debts  194 

See  POWERS  OF  GOVERNMENT. 

TERRITORIAL  COURTS. 
Where  established  109 
Tenure  of  Judges  in  Michigan  110 
Courts  there,  how  organized  ib. 
How  constituted  in  Arkansas  ib. 
How,  in  Missouri  ib. 
Tenure  of  Judges,  and  Juris- 
diction of  Courts  in  both  ib. 
Judicial  Power  in  Florida  111 
Courts,  how  organized  ib. 
Teaure  of  Judges  ib. 


P«ge 

Jurisdiction  vested  in  the  seve- 
ral Courts  111 
Special  Jurisdiction  of  certain 

Terrilorial  Courts  ib. 

TERRITORIAL  REGULATIONS. 
Power  of  disposing  of,  and  re- 
gulating    Tenitory     and 
other  property  of  the  Uuion  1 J 
Condition  annexed  to  it  187 

Construction  of  power  ib, 

See  POWERS  OF  GOVERNMENT. 

TITLES  OF  NOBILITY. 
Power  of  granting,  prohibited  to 

Congress  193 
and  to  the  States                  20d 

TREASON. 

Power  to  declare  its  punish- 
ment 18-2 

Treason  against  U.  S.  defined       ib. 

Evidence  requisite  to  convict      183 

Judicial  constructions  ib. 

Treason  against  a  State  184 

Effect  of  a  confession  ib. 

Punishment  of  treason  against 

U.  S.  ib. 

TREASURY  DEPARTMENT. 

How  organized  72 

Duties  of  Secretary  ib. 

Vacancies,  how  filled  73 

TREATIES. 

Nature  of  Power  to  make  135 

To  what  extent  declared  Su- 
preme Law  ib. 
How  and  where  the  power  is 

vested  ib. 

How  Treaties  are  to  be  con- 
strued 136" 
How  defined  by  Law  of  Nations    ib. 
How  regarded    by  Courts  of 

U.  S.  137 

Their  effect  and  operation  ib. 

Power  of  Congress  over  mem      1 37 
Obligation  of  Treaties  13£ 

Extent  of  the  Power  ib. 

Interpretation  of  Treaties  139 

Consequences  of  their  violation  140 
Effect  of  partial  violations  ib» 

How  such  effect  prevented  ib; 

Power  of  annulling  Treaties         ib. 
Effect  of  its  exercise  ife. 


INDEX. 


249 


Page 
States  restricted  in  regard  to 

them  193 

See  POWERS  OF  GOVERNMENT, 

PRESIDENT  OF  U.   S. 

SENATE,  &c. 

VICE  PRESIDENT  OF  IT.  S. 

How  chosen,  and  qualifications     58 

How  appointed  in  case  of  no 

choice  by  Electors  59 

His  duties  as  President  of  Se- 
nate 60 

When  to  act  as  President  of 
U.  S.  61 

Evidence  of  bis  refusal  to  ac- 
cept ib. 

How  long  he  continues  to  act  as 

President  of  U.S.  62 

For  what  term  elected  ib. 

His  powers  in  cases  of  Impeach- 
ment 93 


Page 
WAR. 
Whence  right  of  declaring  it 

derived  116 

Causes  of  War  ib. 

Forms  of  declaring  it  117 

Power  of  declaring  it,  where 

vested  ib. 

In  what  mode  declared  ib. 

Effect  of  Declaration  118 

"Levying  War"— what  183 

WAR  DEPARTMENT. 

How  organized  72 

Duties  of  Secretary  ib. 

Vacancies,  how  filled  73 

WEIGHTS  AND  MEASURES. 
Power  to  fix  standards  163 

How  far  exclusive  164 

WRITS  OF  ERROR. 
See  SUPREME  COURT. 


THE  END. 


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